TELEPHONE COMPANIES ‑- EFFECTIVE TARIFF FILINGS AND EXCHANGE AREA MAPS ‑- POWERS OF PUBLIC SERVICE COMMISSION

TELEPHONE COMPANIES ‑- EFFECTIVE TARIFF FILINGS AND EXCHANGE AREA MAPS ‑- POWERS OF PUBLIC SERVICE COMMISSION

Commission may accept tariff filings but the mere acceptance thereof where another company already has on file a tariff and exchange area map for the same area would not give the company filing the second tariff and map any rights in the area by the mere filing of the tariff.

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                                                                   April 11, 1957

Honorable Don G. Abel
Chairman
Washington Public Service Commission
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 46

Dear Mr. Abel:

            This is to acknowledge your letter of March 21, 1957 relative to a tariff submitted to the commission for filing by Telephone Utilities, Inc., March 15, 1957.  In your letter you state the filing embraces a complete tariff including rates, rules, and exchange area map, covering the offering of telephone service in Richland, Washington, accompanied with the request that it be accepted for filing.

            It is pointed out in your letter that the commission has had on file for several years a tariff of the General Telephone Company of the Northwest encompassing all of the area set forth in the exchange area map submitted by Telephone Utilities, Inc.  You also point out that General and its predecessors have considered Richland, Washington as part of their service area for many years and that at the present time General owns and operates public pay stations and private branch exchange service in Richland and offers Pasco, Seattle, Spokane and Walla Walla exchange service therein on a foreign exchange basis.

            You also state that Telephone Utilities, Inc. has no telephone service facilities in the Richland area and its tariff makes no reference to any specific date the company can and will offer service.  At the present time, as we understand it, the bulk of the telephone plant in the Richland area is owned and operated by the federal government through the Atomic Energy Commission, and that under Public Law 221, 84th Congress, this agency is authorized to sell these properties.

            In respect to the foregoing you ask the following questions:

             [[Orig. Op. Page 2]]

            (1) Whether the commission either may or must accept the filing of Telephone Utilities, Inc., and

            (2) Whether upon such acceptance, Telephone Utilities, Inc., as well as General would have exchange area rights to operate in the Richland area?

                        CONCLUSIONS

            In answer to question No. 1, it is our opinion that the commission may accept for filing the tariff of Telephone Utilities, Inc.  However, if the commission's administrative policy is, as we understand it to be, to allow but one telephone company to have on file an effective exchange area map pertaining to a particular area, the commission can reject the filing until such time as this policy may be shown to be without legal authority.

            In answer to question No. 2, if the commission accepts for filing the tariff of Telephone Utilities, Inc., the mere acceptance for filing thereof would not in and of itself in this instance constitute a commission determination that the company acquired the proposed exchange area rights.  Acquisition of territorial rights in this instance would flow only from a reversal or modification of the commission's long established policy referred to above, or from facts developed concerning the service and ability to serve of the company claiming a prior right, or from facts justifying an exception because of the uniqueness of the instant situation.

                                                                     ANALYSIS

            The situation presented above has no precedent in the regulation of the telephone industry in this state.  Problems concerning the acquisition of the telephone properties in the Richland area have been considered by the commission on many occasions in the past few years, and have received the attention of this office in prior opinions.  See opinion, AGO 55-57 No. 223, dated March 15, 1956 to the chairman of the Public Service Commission, and also the letter of the Attorney General to the Atomic Energy Commission dated July 25, 1956.  The instant inquiries, in our view, primarily raise problems concerning commission policy, rather than questions of law.

             [[Orig. Op. Page 3]]

            The Public Service Commission is a creature of statute and has no inherent powers but only those expressly given to it by the legislature.  State ex rel P.U.D. No. 1, Okanogan County v. Public Service Commission, 21 Wn. (2d) 281, 150 Pac. (2d) 709.  Within the scope of these powers, however, the commission does have broad discretion.

            With reference to question No. 1, it is our view that in the exercise of the commission's discretion it may accept for filing the tariff submitted by Telephone Utilities, Inc.  There is no statute prohibiting the commission from accepting the filing of such a tariff, although we note that the public service laws refer only to tariffs of public service companies.  A discussion relative to Telephone Utilities, Inc. status as a public service company is not essential to the ultimate conclusions reached here.

            We further must note, however, that it has been the commission's policy for many years that a company having on file a tariff and exchange area map is entitled to serve the area embraced therein exclusively in the absence of any showing of inadequacy of service.  SeeCommission v. Mashell Telephone Co., Cause No. U-8723.  Thus, consistent with your long administrative practice, and in the absence of any showing at this point that the present service of General to the extent it is offered in Richland, or to the extent that it may be offered upon termination of federal operations, does or would fall short of the standards of service required by statute, the commission can reject the tariff of Telephone Utilities, Inc.  If, however, it be felt that such policies requiring the rejection of the filing are unsound for this case, the validity of such policy could then be determined judicially by appropriate legal action by Telephone Utilities, Inc.

            In answer to question No. 2, it is our view that the mere act of filing the tariff by Telephone Utilities, Inc. would not in and of itself in this instance constitute a commission determination that such company acquires exchange area rights.  If the act of filing in itself gave the company in  [[Orig. Op. Page 4]] this instance exchange area rights in the area embraced within the filing, such action by the company could frustrate the commission's paramount regulatory jurisdiction and furthermore would be contrary to past commission policy and decisions as stated above.

            It might be well to observe that a tariff filing is the regulatory procedure whereby a public service company demonstrates its intent and ability to offer telephone service in the area described by the exchange area map.  The tariff likewise includes the terms and conditions under which it is obliged to offer service.  When it becomes effective, the tariff binds the company and their subscribers, subject always to the continuing jurisdiction of the commission.

            InUnited Telephone Company of Missouri v. Southwestern Bell Telephone Company, 10 P.U.R. (3d) 478, the Missouri Public Commission was faced with a problem similar to the one involved here.  In concluding that United Telephone Company had no right to invade the area of Southwestern Bell, the Missouri commission stated:

            "We are not willing to hold that a telephone utility by merely filing an exchange boundary map with the commission, thereby becomes certificated to serve the area, especially in a case wherein another telephone utility had previously filed its exchange boundary map covering the same territory."

            The crux of the question then is whether the commission in the discharge of its regulatory responsibilities in the absence of any judicial precedent invalidating its established policies believes the public interest will be better served by a continuation of these policies or whether a reversal or modification thereof should be effected on the basis of facts not presently disclosed or because of the uniqueness of the instant situation.  We must conclude that it is not within the province of the office of Attorney General to rule on what should or should not be your policy in this regard.

             [[Orig. Op. Page 5]]

            We may observe, however, that because of the public interest in this unique matter, the commission if it determines to accept the tariff for filing may use it as a means of entering into an investigation.  The factual conditions and circumstances surrounding this unusual problem and the area concerned could be inquired into to assist the commission in concluding whether its existing policy should or should not be deviated from in this case.  Pending disposition of the matter, the status quo could be maintained by the entry of an appropriate order without prejudice to the commission.

            At any hearing that would be held, testimony could be received from all proper parties having an interest in the matter.  Without defining the scope of the hearing, the commission could properly receive evidence as to all matters germane to the acceptance or rejection of the filing.  It would seem that from such a hearing, the commission would then be in a sound position to determine whether to recognize Telephone Utilities, Inc. as having any exchange area rights as proposed by its tariff or whether any change in commission policies are warranted.

            In concluding, it should be noted that it is solely within the power of the Atomic Energy Commission to determine to whom it desires to sell the Richland properties.  Likewise, the Atomic Energy Commission may make its own determination now whether Telephone Utilities, Inc. is qualified to purchase the properties.

            In summary, the commission may accept for filing the tariff of Telephone Utilities, Inc.  However, if it desires to adhere to its past administrative policy, it can in this instance reject the filing.  If, however, the commission determines to accept the tariff for filing, the filing would not of and by itself under existing policy in this instance give Telephone Utilities, Inc. any exchange area rights.

            We trust the above may be helpful.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General