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MOBILFONE NORTHEASTERN PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (04/11/83)

decided: April 11, 1983.

MOBILFONE OF NORTHEASTERN PENNSYLVANIA, INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. HAZLE-TONE COMMUNICATION, INC., INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Application of Hazle-Tone Communication, Inc., for approval of the right to begin to offer, render of furnish one-way and two-way radio telephone common carrier service to the public within the reliable service area of a transmitter located approximately one mile northeast of the city of Hazleton, Luzerne County, No. A. 100457, Folder 3.

COUNSEL

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

Eric A. Rohrbaugh, Assistant Counsel, with him, Alfred N. Lowenstein, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.

Sharon R. Bitzel, for intervenor.

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

Author: Craig

[ 73 Pa. Commw. Page 341]

Mobilfone of Northeastern Pennsylvania, Inc. appeals an order of the Pennsylvania Public Utility Commission (PUC), adopting the decision of an administrative law judge (ALJ) to grant the application of Hazle-Tone Communication, Inc. for a certificate of public convenience to provide one-way and two-way radio common carrier service*fn1 to the public within the reliable service area of a transmitter located approximately one mile northeast of the City of Hazleton.

[ 73 Pa. Commw. Page 342]

Mobilfone, Lehigh Valley Mobile Telephone Co., and Schuylkill Mobilfone, Inc. filed protests to Hazle-Tone's application; Lehigh and Schuylkill subsequently withdrew their protests.*fn2

The ALJ held hearings on October 9, November 19 and 20, 1979, January 28, 29, March 26, 27 and May 1, 1980. On May 9, 1980, in a separate application by Hazle-Tone to transfer certificate rights owned by Charles B. Shafer t/a Radio Paging of Northeastern Pennsylvania, the PUC entered an order granting Mobilfone's petition for rehearing, reconsideration and rescission, and remanded that case to the presiding ALJ for further hearings on the issue of Hazle-Tone's financial fitness. Because that May 9, 1980 remand order involved matters relevant to this case, the ALJ also reopened the record in Hazle-Tone's application that is now before us, consolidating the transfer application and this application in one hearing, because the testimony regarding the financial fitness of Hazle-Tone was equally relevant to both applications.*fn3

ALJ Cohen issued an initial decision in this certificate of public convenience application, recommending approval of Hazle-Tone's application on April 23, 1981, and on June 19, 1981, Judge Cohen issued his final opinion, again recommending approval of Hazle-Tone's

[ 73 Pa. Commw. Page 343]

    application. On August 21, 1981, the PUC adopted that decision, and on September 15, 1981, Mobilfone filed this petition of review.*fn4

Under the Public Utility Code, 66 Pa. C.S. ยง 1103, the PUC may grant a certificate of public convenience only if the "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. Mobilfone of Northeastern Pennsylvania, Inc. v. Pennsylvania Public Utility Commission, 40 Pa. Commonwealth Ct. 181, 397 A.2d 35 (1979).

Our court, in Gettysburg Tours, Inc. v. Pennsylvania Public Utility Commission, 42 Pa. Commonwealth Ct. 399, 400 A.2d 945 (1979), reconciled the split of judicial authority concerning whether an applicant must always show that the existing service is inadequate. We held there that where the proposed service is different than the existing service, the applicant need not establish inadequacy of existing service in order to secure a certificate of public convenience, and that proof of public necessity for the service alone may support the certificate. However, where the proposed service is identical to existing service, a showing of inadequacy is required.

[ 73 Pa. Commw. Page 344]

Mobilfone alleges that the PUC should have required Hazle-Tone to prove that the existing service was inadequate. Mobilfone contends that the ALJ, whose final opinion said that Mobilfone did not provide two-way service in the applicant's proposed area, thereby contradicted the finding in his initial opinion that Mobilfone did engage in two-way service in a small portion of Hazle-Tone's proposed area.*fn5 Mobilfone contends that this discrepancy, and the ALJ's failure to consider that ...


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