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Ill. Cons. Telephone Co. v. Ill. Commerce Com.

OPINION FILED JANUARY 24, 1983.

ILLINOIS CONSOLIDATED TELEPHONE COMPANY, APPELLEE,

v.

THE ILLINOIS COMMERCE COMMISSION, APPELLANT.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Coles County, the Hon. James R. Watson, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 8, 1983.

We must consider on this appeal the authority of the Illinois Commerce Commission to regulate radio paging. The Commission granted Aircall Communications, Inc. (Aircall), a certificate of public convenience and necessity to operate a one-way radio paging business within an 18-mile radius of the village of Loxa in the Charleston-Mattoon area. Aircall proposed to provide tone-only and tone-and-voice paging services. At the time Aircall sought the certificate, Illinois Consolidated Telephone Company was already operating a paging service in the area involved pursuant to a certificate which had been granted earlier by the Commission. Illinois Consolidated intervened in the proceedings before the Commission and unsuccessfully opposed Aircall's application for a certificate. When the Commission granted Aircall a certificate, Illinois Consolidated appealed the decision to the circuit court of Coles County. The circuit court set aside the Commission's order and remanded the matter, on the ground that the Commission had failed to make specific findings on Illinois Consolidated's status under the "first in the field" doctrine, which protects a pioneer utility from competition in an area that it is adequately serving. The Commission appealed from that judgment, and Illinois Consolidated cross-appealed. On appeal, the Commission contended that it had no jurisdiction over radio paging. In its order granting the certificate to Aircall the Commission had found that it had jurisdiction; however, the Commission stated in the appellate court that it had reconsidered its position, and that it had concluded that it had erred in that respect. The appellate court held that the Commission does have jurisdiction over radio paging and affirmed the circuit court. (99 Ill. App.3d 462.) We granted a petition for leave to appeal to this court filed by the Commission under Rule 315 (73 Ill.2d R. 315).

Two questions are presented to us. First, whether the General Assembly has granted the Commission jurisdiction over the radio-paging industry. Second, if the Commission does have jurisdiction, should it have applied the "first in the field" doctrine.

The parties agree that the Commission has authority under State law to regulate radio paging only if this activity falls within the following provision of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 10.3(b)) (the Act):

"`Public utility' means and includes every corporation, company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in:

b. the transmission of telegraph or telephone messages between points within this State; * * *."

Thus, the first issue is whether persons that provide one-way radio paging own or operate equipment used "for or in connection with * * * the transmission of telegraph or telephone messages." We judge that they do not.

In the type of radio paging here, a subscriber is furnished with a receiver that is tuned to a particular radio frequency. A person desiring to communicate with the subscriber may phone the paging company, where either an employee or automatic equipment will send a radio signal to the subscriber. His receiver will emit a beep (in tone-only paging), or a beep followed by 12 second voice message (tone-and-voice paging). The subscriber then can place a telephone call to the person wishing to reach him. Also, there is a dual address variation in the tone-only service. That involves the use of two different tones, with each tone signaling the subscriber to call a particular source for information. In one-way radio paging, the paging device cannot be used to carry on a two-way conversation.

A paging service is granted the right to use a radio frequency by the Federal Communications Commission. Awards of radio frequencies are under exclusively Federal control. 47 U.S.C. § 301 (1976). Head v. New Mexico Board of Examiners in Optometry (1963), 374 U.S. 424, 430 n. 6, 10 L.Ed.2d 983, 988 n. 6, 83 S.Ct. 1759, 1763 n. 6; Schroeder v. Municipal Court (1977), 73 Cal.App.3d 841, 845-46, 141 Cal.Rptr. 85, 87, appeal dismissed (1978), 435 U.S. 990, 56 L.Ed.2d 81, 98 S.Ct. 1641.

In Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill.2d 205, this court considered whether the Commission had jurisdiction over cable television transmissions. The Commission had decided that the jurisdiction given it over telegraph and telephone services was sufficiently broad to include authority to regulate the transmission of television messages by cable. The Commission found:

"1. Cable television is a system of delivery of television signals over a grid of coaxial cables possessing a broad frequency bandwidth, which system can also deliver a variety of other video, audio, and data-grade signals. The system as a whole is properly termed `broadband cable communications.'

(b) There is at present a significant service overlap between the offerings of cable television and telephone ...


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