(2) The order does not interfere with interstate commerce; and,
(3) The order has been made after reasonable notice and hearing; and,
(4) A plain, speedy and efficient remedy may be had in the courts of such State."
Since the conjunction "and" is used as the connecting word between the conditions, it is the general view that all four of the numbered contingencies must be found to exist before the Johnson Act can apply and thereby preclude the court's jurisdiction. The existence of one or more but less than all of the conditions is not sufficient. David v. New York Telephone Company, 341 F. Supp. 944, 947 (S.D.N.Y. 1972); United States v. Public Utilities Commission of Cal., 141 F. Supp. 168, 183 (N.D.Cal. 1956), aff'd, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470 (1958).
It is clear that the Commission's December 14, 1971 order herein challenged is one affecting rates chargeable by a public utility, Bell. On page 17 of their brief, plaintiffs acknowledge that "judicial interference with rate orders promulgated by state agencies is concededly precluded by the Johnson Act, 28 U.S.C. § 1342." However, plaintiffs insist that the order of the Commission interferes with interstate commerce, and was not made after reasonable notice and hearing. It is further urged that a plain, speedy and efficient remedy may not be had in the Pennsylvania courts.
It appropriate for the court to consider separately the four statutory conditions to the operation of 28 U.S.C. § 1342.
(1) Basis for Jurisdiction
The complaint alleges that jurisdiction arises under "The Civil Rights Acts and the United States Constitution." Plaintiff apparently is asserting jurisdiction pursuant to 28 U.S.C. § 1983. The aforesaid statutes require the presence of an act or action which is repugnant to the Federal Constitution before federal court jurisdiction will attach. Here, the first condition is satisfied since jurisdiction is premised on the Constitutional repugnance of the Commission's order authorizing the 50 cent private number surcharge.
(2) No Interstate Commerce Interference
The courts have found that state agency orders applicable to intrastate telephone rates do not interfere with interstate commerce, and that the Johnson Act applies. Preston County Light & P. Co. v. Public Serv. Com'n of W. Va., 297 F. Supp. 759 (S.D.W. Va. 1969); General Telephone Company of Southwest v. Robinson, 132 F. Supp. 39 (E.D. Ark. 1955); See, Public Utilities Com. v. United Fuel Gas Co., supra, 317 U.S. at 469, 63 S. Ct. 369, 87 L. Ed. 396; and Kansas-Nebraska Nat. Gas Co. v. City of St. Edward, Neb., 234 F.2d 436, 440 (8th Cir. 1956).
Under the particular facts and circumstances of the instant case, involving private number regulation, which is a matter of local concern, we find that in the context of the Johnson Act, the Commission's order of December 14, 1971, with respect to the challenged 50 cents per month private number surcharge, does not interfere with interstate commerce. Accordingly, we conclude that the second condition of the Johnson Act is satisfied.
(3) Reasonable Notice and Hearing
Plaintiffs argue that the December 14, 1971, rate-making order of the Commission has not been made after reasonable notice and hearing and therefore is not subject to the Johnson Act. Plaintiffs insist in paragraph 24 of their complaint that "no individual notice of the filing of said tariff was made, nor were plaintiffs given an opportunity to protest or to be heard prior to the imposition of the Private Number Surcharge."
In his affidavit, plaintiff, F. Donald Zucker, affirms, inter alia : "the first time I was aware that Bell Telephone Company of Pennsylvania . . . . intended to charge me for having an unlisted telephone number was when I received the first bill levying a charge of 50 cents a month for my unlisted telephone number. At that time, the Pennsylvania Public Utility Commission had already approved the new charge. I did not know that Bell had applied to the Utility Commission for the new rate." Plaintiff Zucker further declares: "I did not read in any newspaper account or any published notice in any newspaper of Bell's filing with the Utility Commission for the new unlisted telephone number rate. At that time I subscribed to the Philadelphia Evening Bulletin and read the paper daily, but I was not notified through that media of the filing or the approval and imposition of the new rate." (emphasis added). Plaintiff Barton maintains in his affidavit that he did not know, or understand that he "could in any way protest the rate increase of Fifty Cents."
The numerous exhibits and affidavits submitted by defendants reveal the following:
Pursuant to the requirements of the Pennsylvania Public Utility Law and rules and regulations of the Commission numerous steps were taken to give notice. On December 3, 1970, Bell filed with the Commission tariff revisions together with a "Notice" of the changes they would effect. A copy of the tariff and "Notice" was available for public inspection beginning on December 3, 1970, and continuing through December 29, 1970, at Bell's headquarters and each of Bell's public offices, including its public offices at Pottstown, Pa. and Norristown, Pa., which serve Bell's subscribers in the areas of plaintiffs, Barton and Zucker, respectively. Bell posted in public view at each of the aforesaid public offices placard notices
calling attention to the new tariffs and stating that they would be produced for examination upon request. Also, a printed letter over the signature of William S. Cashel, Jr., President of Bell, was sent by first class mail, on December 3, 1970, to each Bell customer. In the first paragraph, the letter indicated that
"The Bell Telephone Company of Pennsylvania has filed with the Public Utility Commission increases and changes in rates for local telephone service, including supplemental service, effective February 3, 1971. The proposed new rate schedules are on file at each of the Company's Business Offices and may be seen upon request." (emphasis added).
In addition to the notice requirements of the Public Utility Law and the Commission's rules and regulations, Bell took further steps calculated to inform its customers of the December 3, 1970 tariff filing. Bell distributed to wire services, newspapers, and radio and television stations throughout its territory news releases which resulted in newspaper publicity and radio and television coverage. The following newspapers were circulated in or near the areas where plaintiffs reside, on the dates specified:
(a) Philadelphia "Inquirer" -- December 4, 1970;
(b) Philadelphia "Evening Bulletin" -- December 3, 1970;