Appendix — International Cable T. V. Corp. v. Public Utilities Commission

Appendix A

Decision No. 71559 ; es a

| _ Before’ the Public Utilities Commission.

Pa ee of the State of California f

&

4

Case No. 3499

International Cable T.V. Corporation, | .

a California corporation, —- | S

, 7 piesa ) od

Vs. ; j - e e.

AN Metal Fabricators, Ine. a Cali- &

fornia corporation, and The Pacific | —

Telephone and Telegraph Cornpany,

a California corporation, ©

Defendants. |

Harold R. Farrow, for Complainant. 3

Edward Sumner, for All Metal Fabricators, Inc. and

A: T. George, Pillsbury, Madison & Sutro, by

G. H. Eckhardt and R. W. Odgers, for The

Pacific Telephone and —— re

Defendants.

OPINION

International Cable T.V. Corporation (Interna-

tional), in a complaint filed August 15, 1966, dlleges in

substance that defendants, The Pacific Telephone and

Telegraph Company (Pacific) and All Metal Fabrica-

_tors, Inc. (All. Metal). conspired to evade the so-called’

2

**1956 Conisent Decree” and to delay complainant's ,

entry into the community antenna television (CATV) .

_ business. in portions a the unincorporated area of

- Altadena.and La Canada, Los Angeles County, under

a pole contact agreement with Pacific, dated March 28,

» 1966, by a “‘erash” program of building channel facili-

ties for All Metal in the same area, under a ‘“‘Memo-

‘Tandum of Agreement”, dated May 19, 1966 and a

“Contract For Community Antenna Television Chan-

‘ nels”, dated June 13, 1966. (The pole contact and

channel agreements were submitted by Pacifie to the

- Commission for authorization on April 28, 1966 and

June 13, 1966, respectively.) . ahaa

Complainant alleges that a. activities not

functory” Commission juthiceleation for its prior pole

contact agreement, but also operated to burden’ Paci- °

fic’s rate-paying. eustomers by-construction of channel .

facilities for All Metal .at-less than cost, and to mis-

lead the Commission. by the device of having All Metal

- file a sham ‘comiplaint against Pacific, speciously alleg-

e ing unjust discrimination and asking for denial of

authorization, for International’s pole contact agree-

-- ment, without naming. International’ as a party. (Ag

>

1 That decree; among ‘athe matters, ‘enjoined the American Tele-

phone and Telegraph Company and its subsidiary operating. com- '

: panies from engaging in any business other. than the furnishing rn |

of “common carrier communications services”. (U.S. v. Western a

' Electric Co..and American Tel. and Tel. ‘Co. (1956) U. 8. Dist.

Ct.; N.J. Civil ‘Action No. TEM) |

—— ee, ee eee eee ee

7 Z- ks

Metal Fabricators, Ine. v. Pacific Tel, and Tel. Co.,

Case No. 8421, filed/May 23, 1966 and now at issue.

Complainant here requests consolidation of Case. ” 0.

8421 with the instant proceeding.) ~

6

Chmplainant asks, in substance, that the Commis-.

sion order defendants to cease and desist from build-- -

- ing, selling, leasing or using, or attempting to do SO,

the channel facilities described in the complaint, for

. transmission yor: distribution. of. broadcast: signals

within the described areas of Altadena or La Canada, .

or any other area within Los Angeles County; that

' defendants be ordered to dismantle and take down the

CATYV facilities and appurtenances thus ‘far con-

structed, other than telephone‘plant per ‘Ses. that com-

‘plainant’s pole attachment agreement with Pacific be

- immediately approved and Pacific be ordered to ¢o-

‘operate in the construction of complainant’s system

: within the area deseribed i in its agreement; that com-__-

‘plainant “‘be made whole on account of the damages

- suffered as aforesaid.” / 3

The Commission, on consideration of the allegations

> of the complaint. and in order to preserve the status 7

quo,-on August 16, 1966 issued.and served on defend-

ants a temporary restraining order, together with a

copy of the complaint, directing, until further order

of the Commission, immediate cessation of. Pacifie’s

channel faeilities construction for All Metal and use

' of such facilities by All Metal for CATV business in

~ the Altadena areas in question, ordered a hearing to

- be held on August 19, 1966 and directed defendants

to file answers to the complaint on or hefore the date

ite

e

t

of hearing, or at suth time as _— be designated by.

the Presiding Officer.

The hearing prescribed by the ainda Mestrain-

ing order was held before Examiner Gregory, eviderte

and argument were received, defendants were directed

to file answers, and, the parties to file memoranda of

points and authorities, on or before August 31, 1966,

and the temporary restraining order was ordered to .

remain in effect until further order of the Commis-

sion. The answers and memoranda have been filed.and

~ eonsidered, along with the complaint, Pacifie’s ‘‘Offer

- of Proof” (filed prior to the hearing) and the evi-

dence. and argument adduced at the hearing.

. Pacific’s answer denies any conspiracy by e6-defend-

ants and in substance avers that: jurisdiction over

this controversy lies only in the Federal Communica- .

tions Commissign or .this Commission and that the

"1956 Consent Decree is irrelevant here; Pacific has”

observed its duties to provide adequate and nondis- —

criminatory -services.as set forth in Public Utilities

Code sections 453 and 761 and sections 201 and 202 of

the Communications_Act of 1934, as amended; Pacific

has:a statewide franchise under section 7901, Public

Utilities Code, to construct telephone lines. upon any

_ public road or highway in Los Angeles County and

throughout California, including private lines for»

transinission of television and related signals for

CATV systems;-Pacific’s, pole attachment policy, de-

veloped and consistently adhered to with the object of

eonserving available ‘pole: space, has been to permit,

on. its own poles or those jointly owned with other

-&

~~

5

utilities, “ats one CATV on attachment per pole, on

a ‘‘first-come-first-served” basis, and that such policy,

averred to have been carried out on a non-discrimina-

tory basis, has proved workable and in accord with the

_ generally accepted economics of the CATV industry,

‘ie., that any given area will-only support one CATV

system; that Pacific presently has some 120 pole ©

. attachment agreements in effect, and that such agree- ©

ments provide that they- are subject to this Commis-

sion’s approval first obtained, and to such modification

or change as. the Ve — order, and also

provide: (

‘“‘The ian declares that the filing of the

| contract herein with the Public Utilities Commis-

sion pursuant to the procedural requirements of ~\

_ General Order No. 96-A is not to be construed as —

a public offering by the Company of the services - ae

or facilities hereinabove referred to.”

vv

Pacifie’s answer continues with averments that it

has made a public offering of channel facilities for

- ‘use in CATV local distribution systems, available to ©

.any and all CATV. operators desiring such service,

‘by filing with this Commission, on November 3, 1965,

An intrastate tariff offering ‘such service; that such

tariff was suspended by the Commission by its order -

of suspension and investigation in Case No. 8305, filed

November 23, 1965, as amended by the Commission’s

order of J anuary 18, 1966; that the Federal Commu-

nications Commission, by public notice dated April 7, °

1966, asserted jurisdiction over such service as

‘incidental to radio communication” and has ordered

Paeific to file interstate. tariffs for this service; that

6

the FCC order became non-appealable sixty days after.

its effective date.?

Pacific avers that te - channel facilities publicly

offered for CATV use are no different in nature from

the facilities it uses to provide other. private line.

services such as telephoto services and facilities for.

the transmission of television signals for broadcast

stations; denies the allegations of paragraphs XII

and XIII of the complaint and avers that the .

chronology of events’ referred to therein (negotiations

_ with Pacific for complainant’s pole attachment agree-

-Inent) was_as set forth at pages 6-9 of Pacifie’s Offer

of Proof; admits that it executed a pole attachment

agreement with:complainant on March 28, 1966 and

- avers that it required and received nothing from com-’

plainant other than the insurance and bond documents -

called for by the agreement, complainant’s designa-

tion of the area for which pole attachments were

desired, and three copies of complainant’s. franchise

* >from Los Angeles County; that Pacific explained to

2 Attached to Pacific’s answer are: a copy of its Offer of Proof,

filed herein August 18, 1966, to which are attached copies of the

FCC’s public notice of April. 7 and its Memorandum Opinion and

Order of June 22, 1966, refusing reconsideration of its direction

to file interstate channel facility tariffs; a copy of i ne answer,

filed June 13, 1966, to All Metal’s complaint i in Case 8421, to

which are attached. copies’ of .certain correspondence and ‘the

agreements (including area maps) with International and All

Metal, referred: to herein, together with a copy of a Commission

letter, dated April 5, 196 1966 (File No. 508), to Pacific stating that

a channel fagility agreement between Pacific and Warner Bros.

T.V. Services, Inc. (filed by Pacific for authorization) would not

be authorized during the pendency of Case No. 8305. (That ccon-

tract was later authorized conditionally.) Case No..8305 ‘has been

discontinued, following withdrawal by Pacific of its intrastate

‘channel facility tariff filed with this Commission on November 3,

1965 (Decision No. 71334, dated ae 27, 1966).

7

complainant the procedures for filing and “‘approval”

of the contract by the Commission, after necessary

processing by Pacific, and that Pacific would-and did-

file the agreement. ; |

Other denials and averments by Pacific relate to

: complainant’s allegations concerning: Pacifie’s con-

spiracy with Alt Metal and the former’s attempt to’

‘secure a monopoly of CATV business; Pacific’s delay

in securing Commission authorization for. com-

plainant’s pole attachment agreement; Pacifie’s. collu-

-sion with All Metal in having All Metal file a

complaint against Pacific (Case No. 8421), as to which

Pacific avers, referring to its answer in that case

(Appendix B to its answer herein) that All Metal, in

Case ‘No. 8421, sought no relief from Pacific but only

simultaneous ‘‘approval” by the Commission of All

Metal’s channel contract and International’s pole

_ attachment agreement, and that the relief requested

by Pacific in its answer to that complaint was a

matter for regulatory determination. |

* Pacific’ S$ answer avers, further, that construction of

channel facilities for All Metal commenced during fhe

week of July 25, 1966 and was pursued expeditiously

and economically until issuance of the temporary re-

straining ‘order herein; that about 40 per cent of the

channel facilities-are ‘‘double lashed” to éxisting tele-

phone plant and that four new poles and related

equipment were erected in the construction of those

facilities; that double lashings are-now and for many

years have been used by Pacific and other telephone

utilities within California, with knowledge of - this

:

' Cominission’s. staff, and that double lashings are an

~ economical use-of plant and do not have a detrimental

effect on telephone service.

Pacific denies the allegations. of paragraph Xxx of

the complaint, which assert that unless the efergency

relief prayed for is granted defendants’ acts ‘will

have effectively eliminated any competition for the

supply of community antenna television services in

- the Altadena area, whether said competition be from

complainant or from any other person, firm or corp.

ration.” Pacific further denies, for lack of informa.

or beliéf, the allegations of paragraphs X XIX: and

_ XXXI of the complaint, which refer to complainant

having learned, during the early part of the week of

_ August 8, 1966, of the commencement of a portion of

_ the construction of channel facilities for All Metal,

and on August 11, 1966 having learned that the con-

struction had not only: been commenced but sub-

‘ stantially completed and was scheduled for completion

_on August 13, 1966. We here note that the conclud-

ing paragraph of Pacific’s ‘Memorandum of Agree-

ment” with All Metal, dated May 19, 1966 (Appendix

© of Pacific’s Offer of Proof and referred to in the

‘Contract For Community Antenna Television Chan-

nels”, dated June 13,. 1966) states that ‘Telephone

Company shall make diligent effort to have said

channel services available for All Metal’s use on or

about September 15, 1966”, subject to certain provisos,

including one stating that, ‘Telephone Company shall

‘in no event furnish said channel services in the

advance of the effective Gate of sai@ tariff (Pacific’s S

9

suspended intrastate channel — or contract, as

_ the case may he”.

Pacific, as its Separate and affirmative: idieieies Kas

incorporated in its answer pages 1 to 9 of its Offer of :

Proof, filed herein August 18, 1966 (excluding only -

the- submissions of counsel set forth below the line

appearing on page 9 and through page 11). The |

incorporated matter that Pacific has offered to prove,

_ without challenge to or concession of this: Commis-

sion’s jurisdiction to grant all or any part of the

relief requested by, complainant herein and within

reasonable time limitations, alleges facts: concerning

Pacific’s development of its policy « of accommodating,

in the public interest, CATV installations on its poles,”

or on poles jointly owned with other public utilities, .

noting that Government Code section 53066, enacted,

- In. 1963, provides. that cities. and counties may en-

franchise or license the construction of a CATV

a dersess and may authorize the grantee to place

‘‘wires, conduits and appurtenances | for the commu-

nity antenna television system along or across such

' public streets, highways, alleys, public properties, or

public easements of said city or county or city and

county. Public easements, as used in this section, shall

include- but shall not be limited to any easement

created by dedication to the city or county. or city and

county for public utility purposes or any other ~

pose whatsoever”.

Pacific then alleges that local govermmente, ender

this section, in some instances have asserted the au- ~

thority to choose among applicants for franchises or

10

to designate specific areas to be served. Other local

governments, it is alleged, have issued nonexclusive,

broad .franchises and in effect have left the CATV

operators so franchised to struggle. among themselves

for economié survival. (The Los Angeles County

franchises held by International and All Metal which .

are pertinent here appear to be nonexclusive.)

With respect to channel agreements, Pacific, in the

incorporated matter from its. Offer of Proof, alleges

that: in the late 1940’s and early 1950’s, when CATV

companies began to develop the business of providing

good quality television reception principally in areas

remote from television broadcasting stations, Pacific

faced a serious “held order” situation for basic tele-

phone services, due to postwar population and busi-

ness growth in California, and was not able to devote

channel equipment to CATV use; later, with allevia-

_ tion of the held order problem it was able to provide

such facilities; in 1956 the California Supreme Court

_ (Television Transmission v. Public Util. Com., 47 Cal.

2d 82) held that CATV’s were not public utilities (i.e,

telephone corporations) and, therefore, not subject to

the jurisdiction of this Commission; in 1964, Pacific .

secured this Commission’s authorization for the first

agreement in California offering channels for local

distribution by a CATV company, over objection by

several CATV operators and a city, the latter on the

ground that no franchise had been obtained from the

_ city for the proposed service (P.T. & T. Co-Omni-

Video, Inc. (1964), 63 Cal. P.U.C. 388, at p. 391);

11

“that the Commission achgleded, in ihe cited case, that

since it had no jurisdiction over CATV’s—

“The matter of whether or. not a city franchise. .

has been obtained, or is even required, by Omni- —

Video is likewise not“controlling here. The pro-

tests of CATV operators. (directed at the fran- -

chise situation and also at service and rates) are

therefore irrelevant to our determination. .

“The sole issue before us is' whether or not the

items of the contracts are reasonable and specifi-

cally ps eathonig og cast a burden upon Pa-

cific’s customers e only questions in this -re-

gard were those raised by the staff concerning

return of the deposits. We find that both \con-

tracts should-bé modified by elimination of the

provisions permitting early refund of the deposits

so that said deposits cannot be refunded in full in

less than 10 years. Such modifications will pro-

vide ample protection to Pacific against possible

losses in the event of early termination of service

without the saad of adjusting the rate of

refund. —

“Since this is a new type of service ‘Scie of-

fered costs have been based on estimates. After

Pacific has had a reasonable ‘amount of experi-

ence in ‘providing the new service it will be ex-

pected to regularize the charges by filing a tariff.”

Pacific alleges that, in harmony with the last para-

graph quoted above, it filed a tariff on November 3,

1965, setting forth its public offering of channels for

"local CATV distribution systems.

Other allegations in the incorporated matter from

Pacifie’s Offer of Proof are, in substance, that: in -

3

the interval between a prehearing conference (March ;

17, 1966) in this Commission’s tariff suspension pro-

ceeding (Case No. 8305): and the- scheduled hearing

days (commencing May 9, 1966), the FCC, referring

to prior correspondence with The American Telephone

and Telegraph Company, asserted jurisdiction over -

channel offerings for local CATV distribution systems

by its public notice of April 7, 1966, in which it de-

clared : ‘The furnishing of such facilities by a com-

mon. carrier: is ‘incidental to radio communication’ ” ;

also, “CATV systems are. extensions of the suteabintl

service of the television broadcast stations whose sig-

nals they carry and, hence,. are engaged in ‘interstate

communication by wite’ to which the provisions of

The Act apply”; that Pacific and the other operating

companies were ordered to file tariffs for this service

with the FCC; ‘that on May 3, 1966, the American .

‘Company transmitted to the FCC for filing, under a

protest, copies of the tariffs and the two Pacific con-

‘tracts which were then in effect, namely, the Omni-

Video contract, previously referred to, and an

_ agreement with ‘Warner -Bros., Ine. for the Mission

Viejo develépment in Orange County; that Ameri-

ean’s petition for reconsideration. (and that of the

General Telephone. System as well) was denied on

June 22, 1966, ah that such denial stands as a final :

order of the FCC. :

The balance of the incorporated matter consists of

factual allegations by Pacific concerning its pre-

liminary negotiations with complainant and All Metal _

leading to execution of the agreements herein with the

13°

two CATV operators, and allegations concerning the

pleadings in‘Case No. 8421.. Pacific asks that the com-:

plaint herein be dismissed. ee

_ Extended reference has been made to Pacifie’s an-

swer not only to indicate the broad context’ in which

this controversy arises, but also because, unlike the

‘answer filed by All Metal, it meets complainant’s al-

‘legations squarely and thus, together with the com-

plaint, forms a well-defined frame ‘within which to

_ consider the mixed questions of law and fact disclosed

by the pleadings. See doe are te a

All Metal has incorporated its answer, filed Septem-

ber 1, 1966, in its “Brief” filed the same day. Since

the answer is largely argumentative its incorporation ;

in All Metal’s “Brief” justifies us in considering it

chiefly as an extension of All Metal’s argument; how-

ever, to the extent that it contains any denials, aver-

ments or other defensive responses that can be identi-

fied with specific allegations-of ‘the complaint, we will ~~ -

consider those responses as having been directed ‘to

such allegations. — s ee | i

All Metal, in addition to requesting general relief,

in substance asks that: = Aue :

1. The complaint be stricken’ as “‘fraudulent,

false and sham pleading” and that, in any event,

it be dismissed as to All Metal. |

2. Case No. 8421 be retained as a. separate

matter from the instant case. roe

'. 8. The temporary restraining order be dis-

solved. — ai roe :

‘"

4. Pacific be directed ‘‘to proceed forthwith |

’ with the prompt processing: of the June 13, 1966, —

”. agreement for approval, by the Public Utilities

7 Commission”. (That agreement, filed June 13,

So > 1966, is now before the Commission in this -Pro-

ceeding, as well as in Case’ No. 8421.)

+5. In the évent the Commission ‘‘somehow”

concludes that it has jurisdiction of any contro- —

*'*. versy existing between All Metal and Interna-

‘ tional, regarding damage done by either to the

other, that All Metal be- allowed to file a. cross-

complaint against International ‘‘for the substan-

. tial damages which will agcrue and have accrued

“to All Metal as ‘the result of the filing of the false

pd fraudulent complaint herein”. en “pp.

13-14.) ; | Sst

~ AIL Metal, in its response, eicts that no evidence

was ‘received at the August 19 hearing herein to sup-

: port either ithe 1 issuance of the restraining order or the

factual basis‘upon. which the complaint is predicated. | .

- (The only factual evidence, other than two area maps, -

received: at_that hearing consisted: of ‘testimony by:

‘ Clarence Unnevehr, an engineer and former employee.

of this Commission and presently a consultant for the

{CATV Association, with broad experience: in public

tility “regulation. The witness: testified concerning a

‘se field inspection he had made, shortly before the. hear-

~ ing, of ‘Pacifie’s channel'construction for All Metal in

a Altadena, and gave his opinion on certain: economic —

——~

4 , = ° > 4

r ad ‘ ‘ . . + :

fe corp powering POT = Lens ” ——— . — ' —_

at eo Pi id Sil tae tia a = -. ae a eg

advantages and disadvantages to the CATV operators”

-and Pacific he considered would result: from distribu-

tion of signals by channel. facilities as compared: with

pole attachments. ) All Metal ganerte be it will suffer

“ e ”:.

. &

——S—~—S

15

“irreparable injury” if the restraining order is not

dissolved forthwith ; that concurrently with the filing

_ of the instant complaint International - commenced

active solicitation of customers in.the Altadena area

although it has no plant there, and that its complaint -

should be recognized simply as an attempt to use this |

Commission ‘‘to give International Cable a business -

advantage which it cannot ecient lawfully obtain”

(Brief, p. 2).

All Metal, in its answer, after asserting it i is not‘a

‘public utility and is not subject to the jurisdiction of -

this Commission, and did not, merely by filing a com-

plaint against Pacific (Case No. 8421), submit to this

-Commission’s jurisdiction in connection with ‘any: dis-

pute between All Metal and any other nonutility or-

ganization, refers to the chronology of its negotiations,

allegedly commencing about the first week in Decem-

ber, 1965, for a pole attachment agreement with Pa-

_ cific in the Altadena area and avers that, having been .

advised by Pacific that a pole attachment in that area

was available, it obtained a franchise’ from the Board

of Supervisors of Los ‘Angeles. County by ordinance

_adopted March 8, 1966; that, shortly after All Metal

was advised by Pacific that a pole attachment. was

available, one of All Metal’s employees advised the —

then president of International that All Metal “was

going into the Altadena area, and shortly thereafter . ©’

' the then. president of International Cable laughingly -

advised said employee of All Metal that International -

had outmanuevered (sic) All Metal by filing a written

application for a pole attachment agreement before

16

‘All Metal iad the opportunity to so-do.” All Metal

then avers that it learned from Pacific that Pacific

was ‘‘treating International Cable as the first ap-

plicant for a pole attachment in’ the Altadena ‘area,

and that pursuant to Telephone Company policy they

would. not entertain other applications in that area”,

despite the fact that All Metal was financially able to

install a ‘‘high quality” nem in that area aes

International was not.

All Metal, in response to paragraphs XII and XIII

of the complaint, ‘‘notes” that its oral application to

Pacific preceded both the oral and written application

of International, and that ‘‘the only reason All Metal

did not submit a written application for a pole attach-

ment agreement was the position taken by The Pacific

Telephone and Telegraph Company employees’ that

such a written application would not. be entertained

after International Cable made its letter request, as

aforesaid, upon learning of All Metal’s intention of

- going into the Altadena area”. (Ans., par. 9.) (We

_ tions of the Altadena-La Canada area, was granted on

March 31,°1964 and: that All Metal’s franchise was

note that the pleadings herein disclose that. Interna-

tional’s franchise from Los Angeles County, for por-

granted on March 8, 1966, some two months after

International,'as averred by Pacific (Offer of Proof,

p. 7), had formally applied to Pacific for pole aosoual

ments in the Altadena area.) )

All Metal then avers that it jntes of Pacific con-

cerning availability of telephone company lines and.

facilities, ‘‘on a lease basis”, to connect All Metal’s

sont

17

head end site with its prospective subscribers in

Altadena, and that on or about February 28, 1966,

shortly after All Metal was “‘awarded” its Los Angeles |

County franchise (All Metal avers, variously, that the

franchise was ‘“‘awarded” on February 11, 1966 and

February 17, 1966, and that the ordinance ‘“‘formaliz-

ing” the franchise was adopted by the Board of Su-

- pervisors on March 8, 1966 and thereafter published

as required by the local ordinance), All Metal made a

_ written request to Pacific for lines and facilities in the

Altadena area, and on May 19, 1966 entered into a \

Memorandum of Agreement “to get work started”.

and deposited $30,000 with Pacific to cover the esti-

mated cost of work and materials pending execution

of a formal contract, which was ultimately executed

on June 13, 1966 and is now before the Commission

for “‘approval”. (It should bear emphasis that al- _

though the parties have used the term “approval” in

~ connection with: contracts presented to the Commis-.

sion that may require its action, what the Commission _

-actually does is simply to grant or withhold “‘authori-

zation”, sometimes conditional, for the utility to carry

out the terms of such agreements.. The distinction

may appear to be a question of semantics, but it-is— \

nevertheless, real and in some cases, as here, may in-

volve a question of jurisdiction. a"

All Metal then asserts that Pacific, at no time, ie

December, 1965 to date, disclosed to All Metal any

information. whatsoever about . International, or |

Pacifie’s: negotiations with International, except the

information that Pacifie was treating International

: el

siiblaisliaag taskadaahay Siakntal - aiid ahapiahasesaectat isd picihL anes

: OS pk CRE » ‘att mal

3

ish niente”

18

as the first and only applleet bes a. . pole attachment ~

agreement in the Altadena area:

Specifically ‘responding to Patagraph XV of the ©

complaint (which alleges a conspiracy. between Lacific

and All Métal to destroy International’s property

rights and those of others similarly situated), All ©

Metal asserts that Pacific’ s employees with whom it -

had contact during the entire period of its contract

negotiations all emphasized their obligation ‘‘to. re-

spect the confidentiality of dealings with customers

and Pacific’s desire to avoid involvement in any

- CATV enterprise.” Consequently, All ‘Metal asserts,

‘the. contention that All Metal and Pacific entered

into a conspiracy of any kind is as ridiculous: and

- farfetched as it is false.” (Ans. .» par. 18 and, in similar

vein, pars. 14-16.) —

Responding to paragraph XVI of the compla int

(which alleges details of the “conspiracy.” , poses the

7 resultant burdens International has claimed would be

east on Pacifie’s ratepaying customers by construction |

of channel facilities ‘‘at a price less than the cost _

thereof”, and alleges delay by Pacific in filing. "com-

plainant’s pole attachment agreement with the Com-

mission); All Metal asserts that the charges made

under its contract of June 13, 1966 will produce for

Pacific ‘‘a profit at least as great as the return derived —

_by Pacific on equipment furnished to telephone sub-

scribers”, ‘and that the contract, i in any event, is by its © :

terms subject to Commission “approval” and adjust- —

ment of rates. All Metal then avers that the balance of |

paragraph XVI (sub-pars. 2-6) contains allegations

19

that are either “false”, misleading” or ‘“‘unfounded”,

and that “if a three-month delay.in processing an

* application for a pole attachment agreement is legiti-

mate cause for complaint'to the Public Utilities (sic)

. and cause for filing charges of conspiracy and crimi-

nality, then the Commission should shortly be receiv-:

_ ing many, many ebinplaints in form similar to. the

instant one:” (Ans. par. 17.) (Our decision herein

may, we hope, serve :to alleviate All Metal’s “concern

on that Score.)

All Metal continues, in its answer, with responsive .

matter purportedly directed at specific allegations

(pars. XVII-XXXII) of the balance of the .com-

plaint. Its response to those allegations, like that —

addressed to earlier portions of the complaint, is, for

the most part,.so replete with invective, argument and

explanatory detail of an evidentiary nature that,

- except for some assertions tending to indigate its posi-

tion and objectives, one is at some pains to discover

just what it conceives to be the issues. of fact or law

involved in this controversy. Since All Metal’s Brief

and its Answer, incorporated therein, are of record,

and since enough, we think, has beer’ said to indicate

the‘nature of its’ contentions of fact and law, further

detailed reference to those documents, at this point,

_ will serve no useful purpose. e

- We note, however, what All Metal : says in para-

graph 20 of its answer, identified with paragraph

- XIX of’ the complaint. All Metal states that “it

should be noted” that its complaint in Case No. 8421 -

complains only of Pacific’s conduet; that since ie |

20

Commission had no jurisdiction over CATV com-

panies any cause of action All Metal might have

against International was to be pursued in the courts»

and not before this Commission, and that this Com-

mission (as set forth in All Metal’s complaint) should

be concerned about the activities: of a public utility

‘‘which might give an inequitable preference to one

of two business competitors.” In any event, the aver-

ment proceeds, there was no conspiracy involved in

the filixig of. that complaint and “International was

not deliberately. omitted as a defendant perieet toa

conspiracy of any kind.

We next turn to a discussion of the written argu-

ment presented by the Memoranda of Points and Au-

- thorities filed by complainant and Pacific in elahora-

~ tion of their contentions made at the hearing on Au-

gust 19. To the extent that All Metal’s ‘‘Brief”, incor-

porating its Answer, may contain legal argument, that

also will be considered. We note, parenthetically, that

both All Metal’s Answer and Brief and complainant’s

Memorandum were filed subsequent. to August 31, °

1966, the date fixed by thé Examiner at the hearing.

' No good reason appears, however, for not giving due

consideration to those documents. We will first con-

sider complainant’s contentions. . }

Complainant. argues, in substance, that Pacific, by |

means of its channel ‘facility arrangements with All

Metal, has discriminated ‘‘to an extreme” against com-

plainant, which has a prior pole attachment agreement

with Pacific covering portions of the same area in

Altadena and which, as a member of the ‘“public” as.

regards Pacific’s ‘‘provision of services”, is entitled,

a a ae meetin oa Ce ew

<i

21

complainant argues, to equal treatment by Pacific, to

be enforced by this Commission. Complainant, at the

hearing referred to a number of sections of the Public

Utilities Code and to Commercial Communications v. |

Public Util. Comm. (1958), 50 Cal. 2a 512, which

' Sections and cited case, together with authorities cited

in its Memorandum, assertedly provide ample juris-

diction for this Commission to entertain the instarit

- complaint and grant the relief requested.

Statutes cited: by complainant at the hearing and: in

its Memorandum are: og ee

Public Utilities Code sécs. =

207—Dpfining *‘Public or any portion thereof.”

216—Defining public utilities subject to Com-

“. mission jurisdiction. Paths: :

451—Requiring all charges by a utility for .

products or commodities furnished, or any

service rendered, to be reasonable, and ~

that utilities shall furnish adequate, ete.

service and facilities necessary for public

safety, ete. :

453—Forbidding utilities to grant preferences

_ or subject any person to any prejudice or

disadvantage, with ‘ respect. to rates,

. charges, service, facilities, or in any other .

respect, etc.; provides’ Commission may

determine any question of fact “arising

_ under this section.” | ,

701—Granting Commission general supervisory

and regulatory power over public utilities,

necessary and convenient in the exercise

of its jurisdiction.

| 22

1. s

702—Requiring public utilities to comply with |

. any Comnuiission orders ‘“‘relating to or

affecting its business as a public utility”,

and securing compliance therewith by ity

employees. ° .

-‘761—Authorizes Commission, after nee me

findings, to prescribe by order or rule rea-_

sonable utility Seana, penetions and

facilities. |

“762, 767—Authorizes Commission, after hearing and.

findings, to direct additions, extensions,

- repairs or improvements to, or changes in,

existing plant or structures of any utility

or two or more utilities, including division .

of costs (762). Provides for joint sated |

use of poles, etc. (767).

* 851—Relates to sales, leases, encumbrances or ,

other dispositions of utility’s line, plant,

system, “or other property necessary or

~ useful in the performance of its duties to

the public”; does not prevent sales, leases,

encumbrances or other disposition by any

public utility ‘‘of property: which is not

necessary or useful in the — of

its duties to the public . .

6001, 6302—Legislative grant to local bodies to ‘tii

chise, among others, companies that dis-

tribute electric power along public ways.

7901—Grants telephone utilities use of public

rights of way.

7903—Provides criminal penalties for appro-

priation of confidential information by

any employee or agent of a telephone

on,

23

Other Statutes and General Orders.

G.O. 95—Rules for Overliead Electric Line Con-

struction.

Government Code, Sec. 53066—Grants cities and coun-

_ ties. authority to en-

franchise or license

CATV companies to

place wires, conduits,

yp. _ ete. in public ways and

easements of the local -

. governments.

Complainant argues that whether the California

' Supreme Court has held CATV service not to be tele-

phone utility service (Television Transmission v.

Public Util. Comm., supra), or the FCC has assumed

jurisdiction over Pacific’s channel facility-effering as

_ @ link in interstate common carrier service (an as-

sumption that. complainant, citing authorities, strenu-

ously controverts), are consideratians irrelevant ‘to

the instant case. What complainant stresses here is

that there is not, and should not be, a legal distinction

between Pacifie’s ‘“‘facilities leased” pursuant .to a -

pole attachment agreement and its ‘‘facilities leased”

pursuant to its ‘‘so-called contract for community

antenna television chamnels. ” Complainant asserts that

in neither case are the facilities used as telephone

facilities, but in both cases existing and new plant are

made available to the CATV operator and are used

for the purpose of facilitating the transmission of

television signals, and that ne. there may be a dif;

ference in the amount of ‘“‘service”, to pretend: ‘Spare 3 is:

24

a difference in kind as between: the two “facilities” is > =

mere sophistry.. | ‘

Complainant argues further, ‘that public interest

| and public policy require, in order to conserve

physical:space in, above and under the public ways |

. and to maintain esthetic values, that, when possible,

all pole and wire users join together-in a common use

of one set of poles and wires; that this policy is recog-

nized in paragraph 8 of complainant’s pole attachment

' agreement (quoted, Memo., p. 6), and by section 762,

_ of the Public Utilities Code (quoted, in part, Memo.,

_ p. 6), and that section 767 of the Codé gives the Com-

mission authority to require two or more public

utilities to make use of the same wire, poles, pipes

and other equipment. : |

Accordingly, complainant argues, although neither _

complainant nor All Metal is a public utility, this

Commission ‘“‘has the power and jurisdiction to regu-

late their use of the public right of way, and the jpint

use of. the poles, wires, and conduits placed thereon

. whether owned by a, telephone corporation with a

statewide franchise, a power and light corporation

with a county franchise, or a private company with a

local franchise.” Such jurisdiction, complainant

asserts, . ‘‘is, ‘of. course, in ‘addition to ard different

from the jurisdiction the Commission has over the

myriad of activities of The Pacific Telephone and

Telegraph Company, as a telephone ‘eorporation.”

: Complainant suggests that this Commission should

not be bound by decisions of other state commissions

or courts (some of which are cited in. Pacific’s Memo-

25. . | al

randum), which, even if rendered under laws identical

with those.of California and on questions\‘‘squarely

and directly” presented, would be of no aid (except

perhaps in a rate or tariff filing. case) when ee to

7 the *‘unique facts” of this case. :

.. In conclusion, complainant refers to the ES

.. of Clarence Unnevehr, mentioned earlier, and asserts

that such testimony ‘‘demonstrates” :

‘(a) The installation of both double-ldshed cable

and new plant construction in the area covered by

| complainant’s pole attachment agreement.

(b) Interference with and ata to’ ain ;

telephone plant.

“ (c) Creation of irreparable damage to com-

plainant ‘“‘by the addition of new installations to

be moved, or to be re-arranged, at complainant’s

expense, and a threat of more of the same.”

(d) That if the restraining order is removed,

‘‘complainant’s opportunity to realize the fruits

of its franchise and pole attachment agreement

will be completely eliminated.”

Complainant | argues that the howe testimony, :

coupled with the verified complaint, various admis-

sions, to date, of the two defendants, and the ‘‘obvious

and continuing loss of income resulting from the de-*

fendants’ actions”, amply demonstraté both the

propriety and necessity of continuing the restraining

order, to which Pacific, complainant states, has indi-

eated no objection. (Pacific’s view, expressed at the

hearing and in its Memorandum, was to the effect that-

since, in any event, authorization for its channel offer-

oer ies

a -

~ ing to AJl Metal was. required, either. by this Commis- ©

sion or the FCC, it was indifferent to continuation of

the. restraining order. ) |

‘Pacific, discussing i in its Memorandum the’ nature of ©

pole attachment and channel’ agreements, points out

that, its individual pole attachment agreements, in-a

standard form, provide that: the CATV operator

(licensee) may place its ‘‘cables, guy wires, anchors

.. and other appurtenances” on Pacific’ s poles, subject to .

certain specified restrictions including. the require-

ment that the CATV Operator pay for all necessary.

rearrangements of Pacific’s facilities; Pacific will fur- Shar

‘ - nish space for ‘attachment of CATV-owned facilities

for $2.50 per pole per year in the case of cable attach-

iments and. $1 per pole per year for attachment of -

| CATV amplifiers; the CATV facilities so attached

may be used for distribution to licensee’s “subseribers,

within the area covered by the agreement, of off-the- |

air television programs, incidental transmission of

CATV-originated or off-the-air FM music and for

occasional transmission of CATV-originated television **

broadcasts. Pook =

_ Pacific asserts that from the inception ef CATV

service, it has, without exception, furnished pole at-

tachment space to the first applicant for such space

a who could fulfill the obligations set forth i in the agree- _

ment; i.e., pole-attachment space has. been rendered on

a “first come, first served” basis; likewise, because

pole space allotted. to coraunication, facilities is

8Exhibit “A” of the cialis 4 is a copy of the “standard”

_ pole attachment sue with International, dated March 28.

1966.

wy

~ 97

limited and i is becoming inereasingly evened: Pacific:

without exception, has refused to: permit later appli-

cants ‘to attach their: facilities to-polés which are in-

cluded within the area encompassed in an eee :

pole attachment agreement. ' : ‘ ,

, With respect to the furnishing of channel facilities

_.to CATV operators, Pacific states that it has also -

entered. into several agreements pursuant to which it

furnishes such facilities to CATV operators (a typical

agreement is the one with All Metal, Exhibit B of the |

Memorandum). Under channel agreements, Pacific:

& asserts, the operators provide their own antennae and ~

related facilities (‘‘head end” facilities) ; ; set their ~

“own rates subject to applicable municipal regulation ;

| (Gov't Code, Sec. 53066) ; select off-the-air television

signals to be delivered to Pacifie for distribution to

their patrons; and solicit, sleet and collect from their

-. own patrons. (Pacifie notes here that, contrary to

repeated assertions of CATV operators, and their

attorneys, channel agreements are not “leases” and

certainly are not ‘‘lease-backs”. This ‘is so, Pacific

asserts, because’ possession and control of and title to.

’ the channel distribution facilities remain at all times

in Pacific. ) Pacific® asserts— and the agreements

| annexed to its Memorandum disclose—that both

channel and pole attachment agreements restrict the

_ CATV operator to transmission of the. same type pro--

grams, mentioned above.

With regard to attachment of CATV-owned facili- ’

ties to utility-owned poles being. a “public utility | Serv;

ice” and, as such subject to regulation - 4 this

-%

‘a

Commission, Pacific argues that the pole attachment

_arrangement is conceptually no different from that

which would obtain if Pacific were to rent to a CATV

. oferator sonie of its vacant land or vacant, office space.

in one of its sama ~ such cases, Pacifie asserts,

it performs no ‘‘service” ; herice, no violation of’ the .

Consént Decree would be involved in ener pole attach-

ment arrangements. :

Because no “service” is performed: under pole .

_ attachment agreements, and because it enters into such

agreements only when pole space is vacant, Pacific

states it has not regarded the terms and conditions of

these agreements as subject to regulation by this Com-

mission ; however, in a 1954 rate case (The Pacific Tel. .

& Tel. Co., Decision No. 50258, 53 Cal. P.U.C. 275, -

320). the Commission held that certain “‘special con-

- tracts”, among them céhtracts for pole attachments,

‘peutiuined by the use of operative property and -

operative personnel of applicant, .-.. necessarily and ~

lawfully constitute public utility service subject to the

jurisdiction of this Commission.” On rehearing of that

ease, however, and upon Pacific’s agreement to file the ~

special contracts with the Commission, the Commis-

sion stated (The Pacific Tel. & Tel. Co., Decision No.

50837 (1954) 53 Cal. P.U.C. 662, 665) : ¥

“The proposals of the Company respecting the

other special contracts, set forth in Items 4 and 5

above will effectively bring to the knowledge of

the Commission the nature and extent -of such

contracts. Filing by the: Company as proposed .in

Items 4 and 5 above will not be construed by the

. Commission as a public holding out. Such filing oe

29 | a1

will not beXconstrued ie the Commission as con-

stituting evidence on that subject.” 7

Continuing with the argument: Pacific ‘caine that. it

voluntarily sought Commission authority to raise its

contract rental chargés for pole attachments, and the

Commission in that case ‘‘accepted the: fact” that

- Pacific does not hold itself out. as offering pole attach-

ment space to CATV operators or to anyone else

(Pacific Tel. and Tel. Co., Decision 7 67694 . (1964)

- 63 Cal.. P.U.C. 221, 222).

Pacific has .referred to. a number of decisions ot ¢

rendered. by. courts and state commissions in~ other

jurisdictions which, it asserts, are to the effect that —

_ the rental of vacant space on its poles is not ‘part of

mission to CATV. companies, or others, to use such

vacant pole space, absent a publie offering, does not

peting CATV companies are in the same geographical

area or not (Ceracche Television Corp. v. Public Serv-

ice Com’n. (1960) 267 N.Y.S. 2d 969; WCcoG, Ine.,

et al. v, Southern Bell, et al. (N.C. Utilities Comm,

June 7, 1966) CCH Utilities Law Reporter, part.

20,373, and other. cases cited on page 9 of Pacific’s

Memorandum)... = |

Pacific states, however, that it stands willing to ii.

a tariff which would govern the terms and conditions _

applicable to the rental of pole attachment space to

on

fa

» the public service performed by a telephone utility in —

the business of telephonic communication, and that. the -

' granting or withholding by. a telephone utility of per-_

involve any question of discrimination, whether com-

9%

——<

| 30

CATV: operators “provided that this. Commission’

deems such .a filing to be in the public interest, that

Pacifie’s ability to render efficient telephone service is

“ not thereby impaired’ in any way—now or in the

- future—and that attachments are limited to one per °

pole”, and that Pacific’s willingness to file such a tariff

with this Commission has been made known to the

CATV industry.

As, to any distinguishing differences i in this Commis-’

sion’s jurisdiction between : pole * attachment agree- |

ments for. CATV-owned facilities and agreements

whereby telephone utilities furnish distribution chan-

nel facilities to CATV operators, Pacific asserts that

its offering of distribution channels to CATV opera-

tors is a public utility service, recognized as such by

this Commission (Pac. Tel. & Fel. Co: -Omni-Video

Inc. supra) as consistent ‘with other ‘private line

services, such as channels for teletypewriter, signal,

. telephotographic and. facsimile services, and channels

for transmission’ of both broadcast and closed circuit

television signals, each of which is a telephone-com-

“pany-provided communications service, and each is

__ offered to the public through facilities dedicated to the

public use. These are the basic tests, Pacific asserts

(citing cases) which determine. ‘the public utility

character -of telephone services. Moreover, Pacific .

' maintains, the California Supreme Court has declared

that Pacific ‘‘is. entitled to use its lines interchange-

ably ‘for transmitting telephone messages, telegraph

messages, teletypewriter messages, telephotographs, —

| programmed services (including radio and television ,

—— 81 re.

| broadcasts) and any other communications service by

mieans of the transmission of electrical impulses.’ ” :

_ (Pac. Tel. & Tel. Co. v: City of Los Angeles (1955) 44.

Cal. 2d 272, 281. Also cited: Television Transmission

v. Public Util. Com., supra, at. p. 87, and, as in a¢cord

_ the Commission’s decision in Re Pac. Tel. & Tel. Co. mi

Decision No. 67334 (1964) 62 Cal. P.U.C: 754—the |

. | “STV” case. )

- 2

Notwithstanding the ‘great number and Ear of

questions raised, the essential issue framed. by, the

pleadings in this case (as: well as by the pleadings in.

All Metal’s: complaint against Pacific, Case No. i

is one of unreasonable discrimination, asserted to have ~

been practiced by Pacific in the provision of agree- .

ments for pole attachments and distribution channeis

in partially overlapping: areas in Los Angeles County

‘ covered by complainant’s and All Metal’s local CATV

franchises. We must: determine whether there has been °.

‘any preference or advantage” or“‘any prejudice or

disadvantage” granted to or suffered by: complainant.

which may be contrary to the provisions of section 453

: of the Public Utilities Code. . 2

Discrimination by a public utility does not mean,

merely and literally, unlike treatment accorded by the

. utility to,those who may wish to do business with it,

_but refers to ‘partiality. in the treatment of those in

file circumstances seeking a class of service offered a.

the public in general. With respect to a utility’s offer

to serve the general public or .a limited portion

thereof, as evidericed by its schedules of rates and

inl the offer i is made, to the extent. of the utility’s

ability to provide the service, to-serve impartially any

member of the public who may qualify under the rules |

and is willing to pay the rates; here the duty to serve |

_ impartially is correlative with the right to demand"

~ and receive the service applied for. It is, moreover, .

unlawful in California for a public utility, including

a telephone corporation, to make effective any con-—

_: tract, arrangement or deviation for the furnishing of ©

any “public utility service” at rates or under condi-

. tions other than the rates and conditions contained i in

its tariff schedules on file and. in ‘effect at the time,

unless it first obtain the authorization of this Commis- —

sion to carry out the terms: of such contract, arrange-

. ment or deviation (Gen. Order No. 96-A, Sec. X.A.; _

, ' sgn added). |

‘The CATV channel facilities ary service tie

ke . Pacific, either by: written contract or pursuant to

a tariff offering, unquestionably constitute*“‘public —

oe utility service”. Pacific constructs, owns, operates and

maintains the plant used in the service and. provides

the energy for transmitting the signal. through the

facilities so constructed, ‘in the same manner as it pro-

vides channels for: transmission of other private line -

services | related to telephony which, likewise, are

offered to the public through facilities dedicated to the

_ public use. ‘Unless such CATV channel facilities are

offered. to the public by a filed tariff, authority must

first be obtained by Pacific, pursuant to General Order

No. 96-A, to make effective any special contract for

o- provision. -

GS

ae sone 83°

The FCC has asserted jurisdiction over the offering

by telephone companies of CATV channel distribution

_sefvice for signals deemed by that Commission to con-

’ stitute a. link in interstate communications. . At least

to the extent that the signal transmitted by Pacific’s

; channel facilities is not interstate in character, juris-

diction over the latter resides with this. Commission.

We do not’ question the FCC's assertion of authority

_ to control interstate activity under its jurisdiction.

Pacific’ S willingness, as pertinent to the present

controversy, to enter into temporary individual license —

agreements with CATV operators for use by the latter

of vac -space on its poles, is neither an offer nor a

providing of “public utility service”, since the utility

. does not hold out such contracts impartially to the

general public or does it thereby provide any ‘‘serv-

ice” related to the concept of dedication to the public

: of a communication service or. facility which is the

hallmark of a public utility calling. Ff;“for example,

an electric utility owning a hydroelectric lake were to

grant, subject to certain conditions, témporary. indi- -

vidual fishing or boating privileges therein, surely this

would not be considered under any rule of law of

which we are aware to constitute an “offer” to the

general public to provide a “service” to which the -

general public -is entitled in. the same sense in which .

‘it-has a right to demand impartial electric service

from the utility ; ; although here, as in the case of pole

3 attachments, ‘a_plant “facility” is used in providing:

‘the fishing or boating privileges, and the economie

— results. of such use of those facilities would, ‘as also is _

the case with pole attachments, be reflected in the

utility’s overall financial situation. This is not to say,

however, that Pacific, either voluntarily or pursuant

to a proper order of this Commission, may not at some”

_. time make a: public offering of pole space té CATV

operators.

Po

Pacific Tel. and Tel: Co., 53.Cal. P.U.C. 275, 320, con-

sidered. that such pole attachment eontracts, per-

formed by the use of Pacific's operative property and

personnel, ‘necessarily and lawfully constitute public .

- utility service subject to the jurisdiction of this Com-* —

mission,” and required that such contracts bé filed |

with the Commission. and authorized pursuant to Gen-

eral Order No. 96-A (it having appeared that ‘‘all of -

the revenues, expenses and plant effects” relating to

Although the Commission in its first decision in The

uch “contract services” were reflected in Pacific’s ©

presentation of that rate proceeding), the Commission,

on rehearing of that application, expressly stated and _

provided. (53 Cal. P.U.C, 662, 664-666) that the filing

by Pacific of such contracts would be construed.

neither as a “* publie offering of the services or facili-

ties” referred to therein, nor “‘as constituting evidence |

on that subject.” The purpose of such filings, stated

- by the Commission .in the sentence immediately pre-

ceding the last two quotations above, was that they

‘will effectively bring to the knowledge of the Coni-

mission the nature and extent of such corttracts.” In

short, what the Commission did in that. case was to

ee

ae

_ provide a ‘procedural method -for bringing to its

attention ‘an-activity of the utility that might be rele-

vant to its determination of reasonable rates. —

Such. procedural requireménts do not touch the°

question. of whether the licensing of vacant space on

Pacific’s poles to CATV operators constitutes, under

the circumstances disclosed by this record, .a “public

é: offering” er a ‘public utility: service.” ‘The short an-

-swer to that question is that Pacific has not yet under-

- taken ‘(other than as conditionally suggested in its —

Memorandum) to make, such a public offering volun-

tarily and this Commission’ has not yet | ordered: it to .

“do so in an appropriate proceeding. |

- We hold, therefore, that: in the absence ofa public:

_ offering the rental or licensing by Pacific of vacant —

space on its poles to CATV operators does not con- —

stitute a “public utility service”. Therefore, author- ,

ization by this Commission of the pole attachment

: _ agreement between Pacific and International dated

March 28, 1966 is not necessary. Special individual

. ° eontracts by Pacific for use of such facilities should, -

however, under the procedural rules: mentioned above,

be supplied for the_ information ,of this Commission.

_ It. follows that complainant,’ possessing a ‘pole

attachment agreement with Pacific.is not in like, or

similar, ‘circumstances with All Métal, whose agree- °

ment with Pacific calls for rendition of a public utility:

service in all respects, like other private line services, _

- provided.by Pacific and Which is subject to different

charges, restrictions and’ conditions of service than

- those found in Pacifie’s — en agreements.

© =

wi ‘

P 4

~)

.

36

Our decision herein will ba limited to the isstie

‘which we consider to be the, contr olling one disclosed. -

by the pleadings and arguments of the parties,

mely, the issue of unjust discrimination, under a.

cone of California law enforceable by this Com-

*. mission. - i .-

We hold that Pacific, in annie: the facilities or

service described in the International and All Metal

agreements in question, did not violate the provisions

against preference ‘or prejudice set forth in section

453 of the California Publie Utilities Code.

- “Aceordingly, we conclude ‘that the. Commission’ ~

temporary restraining order, issued herein on August

16, 1966, should be . dissolved and that International’s

complaint herein should be dismissed. Likewise, for

the reasons stated above we conclude that the related ~.

complaint of All Metal, in Case No. 8421, should be.

_ dismissed, by separate order, however, contemporane-

eee to be issued 1 in; that case.

ORDER |

It is : Ondered Se eae ae oe , P

‘1. The temporary ‘restraining ale issued herein

on August 16, 1966 be and — order sti is dis-

solved. , &

2.. The complaint of ‘ended Cable , V.

Corporation, filed herein on er 15, 1966, is. dis-

- missed.

The effective date of this order shall be. ten ‘iii

after the date hereof, subject to extension of ‘said

ai *

. . J .

- &f*

iy

Wee ll

effective date, 7 Suite ‘order holga upon good -

. cause first having been made. to appear to the Com-

mission within said original ten day period.

Dated at San Francisqo, California, this 9th day of

November, 1966. ..°.

i 7 Peter “E. Mitchell |

ne . President :

ee _ William M. Bennett.

| a A. W. Gatov |

“s eo _ Commissioners

We will file a satis opinion. —

/s/ Frederi¢k B. Holoboff ~

/3/ — G. Grover

~ .

o* $

>} a . : 6 d ~y

«

OEE I EL FRILL GERGELY STOTT

- -

1

_ Appendix B

Decision No. 71698 . :

" Before the Public Utilities Commission

of the State of California

: Case No. 8499

e e

‘International Cable o.V. Corporation, |

a California corporation, _ “

Complainant,

VS. | :

_ All Metal Fabricators,- Inc., a Cali- >

- fornia corporation, and The Pacific |

Telephone and Telegraph sonar doe

a California corporation,

Defendants.

_ “ORDER DENYING REHEARING

International Cable T.V. Corporation having filed

a petition for reheating of Decision No. 71559; and

the Commission having considered said petition and

‘each and every allegation therein, and being-of the

opinion that no good cause for granting a rehearing j

has been made to appear; ie |

~~

\

raed - >

It is Ordered that said piitie for ‘rehearing be, °

and the same is, hereby denied.

Dated at San Francisco,.- California, this 13th day

of December,.1966.

' . -- Peter E. Mitchell

President a

. A. W. Gatov..

‘William M. Bennett

Commissioners

We would grant rehearing. .

/s/ George G. Grover

/s/ Frederick B. Holoboff

Certified as a True Copy |

‘E.H. Gielory - tk

Assistant Secretary) = 8 < . |

Publi Utilities Commission’ = *

State of California :

| Be ee

- @ 3

‘ Ae

Decision No. 71559 | ae

. | : Before the Public Utilities Comnesinsion

} har : of the State of California.

- Case No. 8499 —

>

7 International Cable T.V. Coronation: | os

| a California corporation,

; Complainant,

vs.

ze All Metal Fabricators, Inc., a. Cali- >.

Sipe: fornia corporation; and The Pacific |° = .-__~

1 _ Telephone and Telegraph Company, aug seek

+— ~—~*""a California corporation,

| | | Defendants. |

DISSENTING OPINION OF COMMISSIONERS |

| GROVER AND HOLOBOFF - : oe ee

We dissent. In our view, Pacific’s pole conta :

policy and — constitute a BD aay p utility

} ° °- offering. }9

“Dedication,” “holding out,” “publi¢ offering” —

these concepts look to what a utility does. Procedural

niceties are. not controlling; reality, is. Pacific has

established on this record that it has a consistent

policy with respect to CATV pole attachments ; that

. policy is clearly public in concept: “first come, first —

4

served”—“one customer only”. There is nothing pri-

vate or personal in this -cohcept—indeed . Pacific

appears to stress how impartially it treats all comers.

More importadt, Pacifie’s pole attachment practices —

_ are inextricably linked to’ its channel’ facilities prac- —

* tices. There is no reality in the suggestion that the

agreemerits are just like leases of vacant property.

’ From the standpoint of the CATV industry (and that

industry is the “public” we are talking about), the

_ difference between a pole attachment “agreement” and

a channel facilities “offering” is of secondary im-

. portance. ee y.

- December 31, 1966

» Since the pole attachment agreement is part. of a

public utility offering, the Commission ‘should have

considered and decided the issue of discrimination.

° /s/ George G. Grover

| /s/ Frederick B. Holoboff

Certified as a True Copy

Noel Colemah Lec eee

Assistant Secretary *

Publie Utilities Commission .

State of California

e

| Appendix

she |. Jul 6 °67

2 ree _Clerk’s Office, Supreme Court

4250 State Building. .

‘San Francisco, California 94102

J uly 5, 1967

Dear Sir: I have this day filed Order

| Petition for Writ of Review denied.

ow

» .- Inve: SF No. 22494

Int: Cable T.V. Corp.

VS.

P.U.C. et al

- Respectfully,

William I. Sullivan

ey ee Clerk.

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

July 26, 1967.

Der Sir: I have this day filed Order

_. Rehearing Denied —

Inre: SF No. 22494

International Cable TV.

.

vs.

P.U.C. |

Respectfully,

‘William I. Sullivan

eis : '. Clerk

Jul 27 67 7

wa,

uw

oy

1 a ef ae es

| . .@ P ae

se adix D es

x

Public Utilities Code of: the State of » California,

Section 1756-Within 30: days after the application

- for a rehearing is denied, or, if* the application is

_ granted, . then within 30 days after the decision

on rehearing, the applicant may apply to the Su-

preme Court of this State for a writ of certiorari or

review for the purpose of having: the lawfulness. of

-. the original order or decision or of the order or de-

cision on rehearing“ inquired into and determined.

The writ shall be made returnable at a time and place

then or. thereafter specified by court order and shall —

direct the commission to certify its record in the ©

case to the. court within the time therein. specified.

- (Deering’s California Codes, Vol. 1, Public Utilities

Gode, 1966 Pocket Supplement, pp. 34.53.

| Public Utilities Code of the State of California, °

Section 1757—No new or additional evidence may be

" introduced in the Supreme Court, but: the cause: -shall

be heard on the record of the commission as certified

to by it. The review shall not. be extended further

than to determine whether the commission has Tegu-

larly pursued its authority, including a “determination

of whether the order or decision .under review

violates any right of the petitioner under the Con- .

stitution. of the United States or of this State... The

findings and conclusions of the commission on ques- |

tions of‘ fact shall be final and shall not be subject

to review exéept as provided in this article. Such.

qorstions of fact shall include ultimate facts and the .

ee :

2

. . { 7 yf * ° 9

findings and conclusions of the eommission on reason-

‘ableness and discrimination. (Deering’s California

Codes, Vol. 1, Public Utilities Code, pp. 422-423.)

Section. 1758—The commission and each party to the

Public Utilities ‘Code of the State of California,.

action or proceeding before the commission may, ap-—

pear in the review proceeding. Upon the hearing the

Supreme Court shall enter judgment either’ affirming

or setting aside the order or decision of the commis-

_ sion. The provisions of’ the Code of Civil Procedure

relating to writs*of review shall, so far. as-applicable -

and not’in conflict: with the provisiens, of this - ‘part,

California Codes, Vol. 1, Publie Utilities om pp.

427-428. ) '

Public ‘Utilities Code of the State of California,

“Section 17598No court of this State, except the Su-

' preme Court to the extent specified in this article,

shall have jurisdiction to ‘review, reverse, correct, or

annul any order or decision of the commission or to

suspend or delay the execution or operation thereof,

or to enjoin, restrain, or interfere with the commis- _

sion in the performance of its Official duties, except

that the writ of mandamus shall lie from the Su-

preme-Court: to the commisgion in all proper cases.

(Deering’s California Codes, Vol. 1, Public Utilities

— Code, P- 428.) — >

. Public Utilities Code at She ‘State of California,

Section 1760—In any Proceeding, wherein the’ validity i

H

, apply to proceedings instituted: in the Supreme —

Court under the provisions of this article. (Deering’s

—

3

a

of any order or » dociabon is challenged on ‘the ground

that it violates any right of petitioner under the Con-

stitution of the United States, the Supreme Court

shall exercise an independent judgment on the law

and the facts, and the findings or @onclusions of the

commission material to the determination of the con-

stitutional question shall not be final. (Deering’s Cali-. °

fofnia Codes, Vol. 1, Public Utilities Code, p. 430.) |

; Public Utilities Code of the State of California,

Section 1761—The ependency of a,writ of review shall ©

not of itself stay or suspend the operation of the

order or decision of the commission, but during the

pendency of the writ the Supreme “ Court in the

manner provided in this article in its discretion may

« stay or suspend in wholé or in part the operation of

\. the commission’ S order or .decision. (Deering’s Cali-.

fornia Codes, Vol. 1; Public isc Code, p. 430- .

431.)

Public Utilities Code of the ‘State of California,

~ Section 1762—Except as provided in this section, no

order staying or suspending ait order or decision of -

‘the commission shall be made by the Supreme Court.

except upon ‘five -days’: notice e atid after . hearing. If

‘the order or decision of the commission is stayed or

_ suspended the order. suspending it shall contain a

specific finding based upon evidence submitted to the :

court and ‘identified by reference thereto, that great, or

irreparable damage would otherwise result to the

petitioner and specifying the nature’ of the damage, 7

but the Supreme » sei may sae a beet cn stay

oD. ..-

4

- restraining the operation of the commission order or

‘decision at any time before such hearing and de--

termination of the application for a stay when, in its

opinion irreparable loss or damage would result to

petitioner unless such temporary stay is granted.

Such temporary stay shall remain in force only until

the hearing and determination of the application for’

a stay upon notice. The hearing’ of such application

for .a stay, shall be given precedence and assigned

‘for hearing at the earliest ° practicable day after

signed for hearing. at the earlies practicable day after

the expiration of the notiee. (Deering’s California

Codes, Vol. 1, Public Utilities Code, p. 431.) _

Public Utilities Code’ of ‘the State of California, ;

Section 1763—No temporary stay shall We granted

by the Supreme Court unless it clearly appears from

specific facts shown by the verified: petition that im-

‘mediate and irreparable injury, loss, or damage will

result to the applicant before notice can be served

_ and hearing had on a motion fora stay as provided in

‘ this article. Every such ‘teriporary stay shall be en-

dorsed with the date and hour of issuance, shall be

forthwith filed in the clerk’s office and entered of

' record, shall define the injury and: states why ‘it ap-

pears to be irreparable and why the order was.

granted without notice, and shall by its terms expire

within such time. after entry not to exceed 10 days

as the court may fix unless within the time so fixed

the order is extended for a like period for good cause

stiown, and the reasons. for such extension shall be

entered of record: In case a temporary stay is

4)

| granted without notice the matter, of the issuance of

a stay shall be set down: for hearing at the earliest -

possible time, and when it comes up for hearing the’

party obtaining the temporary stay shall proceed with

the application for a stay and if he does not do so the

court shall dissolve the - temporary stay. . (Deering’s .

California Codes, Vol. 1, Publie Utilities Code, p.

432.) .

~Public Utilities Code of the State of California,

Section 1764—In case the order or decision of the |

commission is stayed or a temporary stay granted, ©

the order of the court shall not become effective until

a suspending bond is executed and filed with and

approved by the-court, payable to the people of the

“State of California and sufficient in amount and

. seeurity to insure the prompt payment by the party

_ petitioning for the review, of all damages caused by .

the delay in the enforcement of the order or decision

of the commission and of all money which any person

or corporation may be compelled to pay pending the

| review of the proceedings, for transportation, trans- -

mission, product, commodity, or service ih excess of |

the charges fixed by the order or decision of the

_ commission, in case such order or decision is sus-

tained. The court, in case it stays or suspends the

order or decision of the commission in any matter

affecting rates or classifications, may also in its. dis-

cretion direct the public utility affected to pay into

court from time to time, there to be impounded until

| the final decision of the case, or _into some bank or

trust company’ paying interest on deposits, under

cok

6

such conditions as the court prescribes, all sums of.

money which it collects from any corporation or per-

son in excess of the sum such corporation or person

would have been compelled to pay if the order or

decision of the commission had not been stayed or

‘suspended. (Deering’ s California Codes, Vol. 1, Pub- |

lic Utilities Code, pp. 432-433.) —

Public Utilities Code of the State of: California,

‘Section 1765—In case the Supreme Court stays any

‘order or decision denying to the utility an increase in -

any rate or classification, the court may condition

such stay or temporary stay so as to permit petitioner

to charge a higher. rate pending the determination of _

the review and may attach other reasonable condi-

tions to such stay Gr temporary stay! ( (Deering’s Cali-

fornia Codes, Vol. 1, Public Utilities Code, P. 433.)

Public Utilities Code of the State. of California,

. Section 1766—In case the Supreme Court stays or

‘suspends any order or decision lowering any rate or

classification or stays any order or decision denying.

‘petitioner. the right to “charge an intreased rate or

classification and as a condition thereof permits the

i charging of highér rates, the court shall require the

public utility affected to keep such accounts, verified .

by oath as may, in the’ judgment of the court, suffice

to show the- amounts being charged or ‘received by

such ‘public utility, pending the review, in excess of |

‘the charges allowed by the order or decision of the

- commission, together with the names and addresses of

- the corporations or persons to whom overcharges will

BBs ven enh carsncionins

7

be refundable in case the -order or decision of the

commission is upheld. The court may-from time to

time require the petitioner to. give additional security,

or to increase the suspending bond, whenever in its

opinion such action is necessary to insure the prompt —

payment of the damages and overcharges. If the final

, decision by the Supreme Court upholds the commis-

sion’s order or decision, all money which the public

- utility has collected pending the appeal in excess of

that authorized by the order or decision of the com-

mission, toge her with such interest as may be reason-

able, shall be promptly paid to the corporations or —

persons entitled thereto in the manner prescribed by

the court. (Deering’ s California Codes, Vol. 1, Public

Utilities Code, p. 434.)

Public Utilities Code of the State of t California,

Section 1767—All actions: and proceedings under this

‘part and.all actions or proceedings. to which the com-

-Iission.or the people of the State of California are

parties in which any question arises under this part,

or under or concerning any order or decision of the

commission, shall be preferred © over,. and shall be

heard and determined in preference to, all: other civil

business except election causes, irrespective of posi-:

_tion on the calendar. The same preference shall be .

granted upon application of the- -attorney of the com-

mission in any action or proceeding in which he is

allowed to intervene. - (Deering’s California Codes,

Vol. 1, Public Utilities Code, P. 435.)