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MOBILFONE NORTHEASTERN PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (01/26/79)

decided: January 26, 1979.

MOBILFONE OF NORTHEASTERN PENNSYLVANIA, INC., A PENNSYLVANIA CORPORATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. CHARLES B. SHAFER, INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Charles B. Shafer, Docket No. 98454, dated July 22, 1977.

COUNSEL

Robert E. Yetter, with him Metzger, Wickersham, Knauss & Erb, for petitioner.

William T. Hawke, Assistant Counsel, with him Kathleen Herzog Larkin, First Assistant Counsel, and Barnett Satinsky, Chief Counsel, for respondent.

Sharon R. Bitzel, with her Frederick W. Alcaro, and Krohn & Hoegen, for intervenor.

Lloyd R. Persun and Shearer, Mette & Woodside, for amicus curiae, Airsignal International of Pittsburgh, Pennsylvania, Inc. and Airsignal International of Philadelphia, Pennsylvania, Inc.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 40 Pa. Commw. Page 183]

Mobilfone of Northeastern Pennsylvania, Inc. (petitioner), has appealed to this Court from an order of the Pennsylvania Public Utility Commission (PUC) granting the application of Charles B. Shafer (applicant) for a certificate of public cenvenience.

On February 8, 1974, Shafer filed an application to furnish to the public one-way mobile radio-telephone service in portions of Lackawanna and Luzerne Counties. Protests were filed by the petitioner and Portacom Electronics Corporation (Portacom), but the Portacom protest was subsequently dropped. Hearings were held, at which it was established that the applicant had been furnishing one-way mobile radio-telephone (i.e., paging) service to the public in the area concerned since 1960 and that he had 54 customers at the time of application. There had been no complaints about his service by either competitors or customers, and several of his customers testified as to their complete satisfaction. In its order granting the application, the PUC acknowledged that the applicant had been operating unlawfully without a certificate. It also noted, however, that the applicant's lawyer had been advised by the PUC in 1957 that a certificate was not necessary to furnish one-way paging service. In addition, the PUC observed that it did not assume jurisdiction over general mobile radio-telephone service until 1964, and specifically over one-way paging service in 1974. It reasoned, therefore, as follows:

[I]n view of the fact that applicant was expressly advised by the Commission that he did not need a certificate, and in view of the fact that the regulatory status of radio common carriers was uncertain during the 1960's and 1970's, we find that applicant's violation was

[ 40 Pa. Commw. Page 184]

    entirely non-deliberate, and that he had no reason to know or suspect that certificate was required. Accordingly, Charles B. Shaffer's [ sic ] prior service supports the award of a certificate of public convenience.

Under the Public Utility Code, 66 Pa. C.S. ยง 1103,*fn1 the PUC may grant a certificate of public convenience only if "granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public," and the applicant bears the burden of demonstrating (1) a public need for the proposed service, (2) the inadequacy of existing service, and (3) the financial and technical capacity to meet the need in a satisfactory fashion. In Re: Applications of L.P. Transportation, Inc. and H.R. Ritter Trucking Co., 25 Pa. Commonwealth Ct. 412, 359 A.2d 848 (1976). The ...


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