Committee Against MRT v. Public Utilities Commission

'• .Sweeney; J. The only issue to be resolved in this appeal is whether appellants were provided proper notice of the proceedings initiated by Cincinnati Bell before the commission. . B. C. 4909.18 provides that, unless otherwise ordered by the commission, the public .utility must file, along with its application to the commission, “[a] proposed notice for newspaper publication fully disclosing the substance of the application. 5 ’ And, irrespective of whether the utility is required to file such notice with the commission, B. C. 4909.19 provides that the utility must publish once a week for three consecutive weeks in newspapers of general circulation throughout the. affected areas “the substance and prayer” of its application. The purpose of this requirement, as evidenced in B. C. 4909.18(E), is to provide any person, firm, corporation, or association, an opportunity to file an objection to the increase under B. C. 4909.19. It is contended in the instant cause that because persons in the affected areas were generally put. on notice of the proposed rate increases, it was immaterial that they were not specifically notified that such increase would be effected by introducing usage rates. We disagree. While • generally the published notice required under B. C. 4909.19 need not contain every specific detail affecting rates contained in the application (indeed, such a requirement would be highly impractical and unnecessarily expensive), the court notes that the statute does require that the “substance” of the application be disclosed; i. e., that the essential nature or quality of the proposal be dis-. closed to those affected by the rate increases. Although there is no specific test or formula this court can apply in reviewing challenges made by subscribers with respect to the sufficiency of the notice provided by a utility,, it is clear, given the purposes of the publication requirement under B. O. 4909.19, that a highly innovative and material change in the method. of -charging customers should be included in the notice. In the instant cause, Cincinnati Bell provided in its [234] notice to subscribers that it bad applied to the commission for authority to increase its rates and charges and revise its tariffs, all of which would be applicable throughout the company’s territory in Ohio. The utility stated further in its notice that more information could be obtained from exhibits on file, with the commission. Although the utility fully explained measured rate service in Exhibit D of its application, there was no mention of this important proposal in its notice furnished subscribers! Prom reading the notice published in their local newspapers, subscribers opposed to usage rates would not have known of the innovative plan being introduced by the utility, would not have had any reason to view the exhibits on file with the commission, nor would they have had any interest in participating in the hearings held before the commission. Thus, because of the insufficient notice, appellants were not only denied an opportunity to present evidence at the hearings before the commission opposing the selection of the experimental area for measured rate service, but also were denied the opportunity to challenge the new rate service itself. We therefore conclude that Cincinnati Bell, in order to insure an opportunity for its subscribers to be heard, was required under R. C. 4909.19 to specifically mention its proposed measured rate service, in its published notice regarding rate increases. The question remains how the failure on the part of the utility to provide proper notice of its proposed measured rate service plan should be corrected. Because appellants are presently fully informed as to the contents of the application, further publication with respect to this group would serve no useful purpose. However, correction of the deficiency does require that appellants be allowed a hearing not only on the narrow issue of whether the Hartwell switching area should be chosen for the experiment, but. also on the general issue of whether measured rate, service should be introduced into any area serviced by the utility. [235] Therefore, that part of the commission’s order which' limited the hearing granted appellants is reversed, and the cause is remanded for further proceedings consistent with, this opinion. Order reversed in part. Celebrezze, W. BkowN and Locher, JJ., concur.' ■ O’Neill, C. J., Herbert and P. Brown, JJ., dissent.