Ameritech Ohio v. Public Utilities Commission

Pfeifek, J. We affirm the commission’s ruling that Ameritech’s participation in Ameritech New Media’s AmeriCheck promotional program constituted violations of R.C. 4905.33 and 4905.35. [80] R.C. 4905.33 provides: “No public utility shall directly or indirectly, or by any special rate, rebate, drawback, or other device or method, charge, demand, collect, or receive from any person, firm, or corporation a greater or lesser compensation for any services rendered, or to be rendered, * * * than it charges, demands, collects, or receives from any other person, firm, or corporation for doing a like and contemporaneous service under substantially the’ same circumstances and conditions.” R.C. 4905.35(A) provides: “No public utility shall make or give any undue or unreasonable preference or advantage to any person, firm, corporation, or locality, or subject any person, firm, corporation, or locality to any undue or unreasonable prejudice or disadvantage.” Appeals of commission decisions are subject to the standard of review contained in R.C. 4903.13, which provides: “A final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, the court is of the opinion that such order was unlawful or unreasonable.” This court has consistently interpreted the statutory standard of review as follows: “ ‘Under the “unlawful or unreasonable” standard specified in R.C. 4903.13, this court will not reverse or modify a PUCO decision as to questions of fact where the record contains sufficient probative evidence to show the PUCO’s determination is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Dayton Power & Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St.3d 91, 4 OBR 341, 447 N.E.2d 733; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 103, 12 O.O.3d 112, 388 N.E.2d 1237.’ ” Ohio Edison Co. v. Pub. Util. Comm. (1992), 63 Ohio St.3d 555, 556, 589 N.E.2d 1292, 1294, quoting MCI Telecommunications Corp. v. Pub. Util. Comm. (1988), 38 Ohio St.3d 266, 268, 527 N.E.2d 777, 780. The record before the commission demonstrated that in its marketing promotion, New Media issued and funded the AmeriChecks, which could be used by its cablevision customers to pay their bills for telephone service provided by Ameritech. The commission saw the obvious — Ameritech attempted to aid its cablevision affiliate by offering, in effect, lower telephone service rates for its customers 'who would use Americast. In collaboration with its cablevision affiliate, by accepting AmeriChecks from its customers who were also New Media customers, Ameritech thus indirectly received less compensation from those customers for their telephone service, violating R.C. 4905.33. As the commission [81] pointed out, the statute prohibits public utilities either “directly or indirectly” charging or receiving greater or lesser compensation for services rendered under substantially the same circumstances. Though Ameritech’s intrafamilial means were indirect, the company did violate R.C. 4905.33. Ameritech also favored New Media customers over the class of telephone service customers who were not New Media customers, violating R.C. 4905.35. Ameritech separated its customers into two classes, with the class of Americast subscribers in effect gaining the exclusive benefit of a price break on their telephone service. This activity constituted an “undue or unreasonable preference” prohibited by R.C. 4905.35. A review of the record in the complaint case indicates that there was sufficient probative evidence before the commission to show that its determinations were not manifestly against the weight of the evidence and not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Based on the record before it, the commission’s order was lawful and reasonable. For the foregoing reasons we affirm the commission’s order. Order affirmed. F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur. Moyer, C.J., Douglas and Patton, JJ., dissent. John T. Patton, J., of the Eighth Appellate District, sitting for Resnick, J..