VYVX of Virginia, Inc. v. Cassell , 258 Va. 276 ( 1999 )

Present: All the Justices
VYVX OF VIRGINIA, INC.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990285 September 17, 1999
JOHN W. CASSELL, ET AL.
FROM THE STATE CORPORATION COMMISSION
I.
In this appeal of an order entered by the State
Corporation Commission ("Commission"), we consider the
validity of a fine that the Commission imposed upon VYVX of
Virginia, Inc. ("VYVX"), and whether the Commission erred in
denying VYVX's application for authority to construct and
acquire fiber optic telecommunications facilities for
intrastate purposes.
II.
Williams Communication, Inc. ("Williams") is a Delaware
corporation which is licensed to conduct business in Virginia.
Williams, through its subsidiaries, conducts a
telecommunications business throughout the United States and
internationally. In 1997, Williams began to construct a new
fiber optic cable system that would extend from Houston,
Texas, to Manassas, Virginia. The cable system would be
capable of transmitting 34,000,000 simultaneous long-distance
telephone calls and would be installed between existing gas
pipelines owned by Williams' subsidiary, Transcontinental Gas
Pipeline Corporation.
The Federal Communications Commission granted Williams
authority to operate its interstate and international
telecommunications systems. Even though Williams intended to
provide interstate service on its cable system, Williams also
desired to utilize the system to provide intrastate service
within Virginia. In furtherance of its goal to provide
intrastate service within Virginia, Williams created a
subsidiary, VYVX, which was incorporated in Virginia as a
public service corporation.
On April 23, 1997, VYVX filed with the Commission an
application for a certificate of public convenience and
necessity to provide interLATA telecommunication services
within Virginia and to have rates established based on
competitive factors. 1 VYVX stated in its application that it
1
The phrases "interLATA service" and "LATA" are defined
in the Telecommunications Act of 1996, 47 U.S.C. § 151, et
seq. "The term 'interLATA service' means telecommunications
between a point located in a local access and transport area
and a point located outside such area." 47 U.S.C.
§ 153(21)(Supp. III 1997). "The term 'local access and
transport area' or 'LATA' means a contiguous geographic area—
(A) established before February 8, 1996, by a
Bell operating company such that no exchange area
includes points within more than 1 metropolitan
statistical area, consolidated metropolitan
statistical area, or State, except as expressly
permitted under the AT&T Consent Decree; or
2
"proposes to offer services to the public within Virginia over
its own facilities and through resale of services provided by
other carriers." VYVX requested authority to construct,
acquire, extend, and operate equipment and facilities to be
used in the operation of an intrastate telecommunications
public facility.
VYVX also stated in its application that it would own the
facilities to be constructed in Virginia. VYVX sought
"authority to offer a full range of intrastate interLATA
telecommunications services to the public on a statewide basis
within the Commonwealth of Virginia as a non-dominant
interexchange carrier." VYVX further stated in its
application that: "[VYVX] will build and operate its fiber
optic telecommunications facilities in Virginia as a public
service company. [VYVX] plans to complete construction of the
facilities in Virginia by December 31, 1997, and intends to
begin construction as soon as it has obtained all necessary
governmental authorizations." Finally, VYVX stated that
Williams "and [VYVX] have authorization to construct
interstate telecommunications facilities and to provide
interstate services pursuant to rules adopted by the Federal
(B) established or modified by a Bell operating
company after February 8, 1996, and approved by the
[Federal Communications] Commission." 47 U.S.C.
§ 153(25)(Supp. III 1997).
3
Communications Commission. 47 C.F.R. § 63.07 (1996). [VYVX]
is filing the instant application to ensure that it has the
ability to offer intrastate interLATA services as well."
VYVX attached a copy of its amended and restated articles
of incorporation to its application. Article II of the
amended and restated articles of incorporation states: "The
purpose for which the Corporation is formed is to construct,
own and operate telecommunications facilities, including fiber
optic lines, for the purposes of providing audio, video and
data telecommunications transmission services and other
telephone services as a public service corporation, public
utility and communications common carrier."
As required by an order issued by the Commission, VYVX
caused notice of its application to be published in newspapers
having general circulation throughout Virginia and mailed
notices to certain public officials. On January 14, 1998, the
Commission issued an order granting VYVX authority to provide
intrastate, interexchange services subject to certain
restrictions contained in the Commission's rules governing the
certification of interexchange carriers and certain applicable
statutes. The Commission's January 14, 1998 order stated that
the Commission would consider separately VYVX's requested
certification to construct its proposed facilities.
4
The Commission directed VYVX to publish notice of its
request to construct facilities throughout the localities in
which it proposed to construct those facilities. VYVX
requested an amendment to its application to reflect its
desire to construct a lateral fiber optic telecommunications
line. The Commission granted VYVX's request and ordered that
the public notice include the areas affected by the
construction of the additional lateral line.
In response to the notice, the Commission received
several comments and complaints. Certain landowners
complained to the Commission because VYVX and its agent,
Coates Field Service, Inc., had threatened the property
owners. VYVX and its agents told the property owners that
VYVX would condemn their properties if the property owners did
not consent to give VYVX easements necessary for the
installation of its cable fiber. For example, Mark E. Decot,
a property owner whose land was affected by the installation
of the cable, testified at a hearing before the Commission
that VYVX threatened to condemn a portion of his land if he
refused to convey an easement to it. Diana Orr, who was
employed with Coates Field Service, told Decot that if he did
not sign a document that she had mailed to him, then his
property would be "condemned and . . . taken anyway, so what
[he] should do is go ahead and sign it and get as much money
5
as [he] can get out of it right now." VYVX filed a
condemnation proceeding against Decot in the Circuit Court of
Orange County. Decot eventually signed a document with VYVX
which gave VYVX the requested easement.
John and Janete Cassell also testified that they were
told by VYVX's agents that VYVX would condemn their property
if they failed to convey a requested easement. A stipulation
of undisputed facts reveals that VYVX had filed four
condemnation proceedings in various circuit courts to acquire
easements of right-of-way from property owners.
David R. Clossin, an employee of Coates Field Service,
testified that Coates entered into a contract with VYVX to
assist it with the acquisition of easements in Virginia.
Clossin testified: "I work for Coates Field Service, with a
business card that we represent VYVX of Virginia."
In September 1997, the Commission, which was of the
opinion "that the allegations raised by the complaints
constitute 'substantive objections' to [VYVX's application],"
ordered VYVX to respond to the landowners' complaints and
directed that VYVX "clarify what certification(s) it seeks
from the Commission and explain whether . . . since its
application seeks authority to construct, acquire, extend, or
operate equipment or facilities for use in public utility
service, certification pursuant to [Code] § 56-265.2 . . .
6
should be required." The Commission ordered that VYVX
"demonstrate why it should not be ordered to cease
condemnation activities until it receives all necessary
certificates of public convenience and necessity from the
Commission."
VYVX responded to the Commission's order and stated that
VYVX proposed to install a fiber optic cable system in
Virginia and asserted that it did not need any certification
before exercising the right of eminent domain. Continuing,
VYVX requested that the Commission issue a certificate of
public convenience and necessity under Code § 56-265.2 which
would authorize VYVX to provide intrastate interLATA
telecommunications services as a non-dominant interexchange
carrier.
On October 17, 1997, the Commission staff asked the
Commission to order VYVX to cease its condemnation activities
because, as of that date, VYVX had filed four condemnation
actions to obtain easements for the installation of its fiber
optic cable, and those proceedings were pending in various
circuit courts. On October 21, 1997, VYVX informed the
Commission that VYVX would not initiate any further
condemnation proceedings until the Commission had acted upon
VYVX's application. Unbeknownst to the Commission and its
staff, VYVX and its parent corporation, Williams, were
7
constructing the proposed cable system that was the subject of
VYVX's application.
The Commission, in an order dated November 25, 1997, held
that "VYVX is not yet 'lawfully authorized to operate'
anywhere in the Commonwealth and . . . its proposed
construction is not an ordinary extension or improvement of
its facilities, and therefore [VYVX] requires certification,"
pursuant to Code § 56-265.2. The Commission held that VYVX
did not have the right to exercise the power of eminent domain
and directed VYVX to "cease acquisition of property or rights
therein, by exercise of, or by implying its right to exercise,
eminent domain authority, until such time as the Commission
has acted upon its application."
On February 9 and 11, 1998, contractors who were
installing the optic fiber cable system severed telephone
cable owned by Bell-Atlantic Corporation. Bell-Atlantic
reported these incidents to the Commission which learned, for
the first time, that construction had already begun on the
facilities that were the subject of the certification
proceeding. The Commission staff filed "a motion for a rule
to show cause and a temporary injunction."
VYVX responded to the motion and acknowledged that
construction of the cable facilities had begun, but asserted
that Williams, and not VYVX, was constructing the facilities.
8
Continuing, VYVX claimed that Williams was constructing the
facilities pursuant to its federal authority and that the
facilities would be used for interstate service. VYVX stated
in its response that it would use the system to provide
intrastate interLATA telecommunications.
The Commission conducted a hearing on the motion for a
rule to show cause and also considered VYVX's request for
construction certification pursuant to Code § 56-265.2. The
Commission held VYVX had violated the Commission's orders of
November 25, 1997 and January 14, 1998 because VYVX had
assisted its parent corporation, Williams, with the
construction of facilities that were the subject of the
application.
The Commission entered an order dated October 8, 1998
holding, among other things, that VYVX had essentially
completed construction of the facilities for which such
authority was sought and that such construction was
implemented "knowingly and by design of [VYVX] and, as
admitted in the testimony of its own witnesses . . . such
construction had begun as early as September 1997" and that
the requested construction "is now an accomplished fact."
The Commission implicitly found that VYVX had made
certain misrepresentations and misstatements in its
application, but the Commission explicitly concluded that
9
those misrepresentations and misstatements did not relate to
VYVX's ability to provide interexchange services. Rather, the
misrepresentations and misstatements "apply to that part of
the application in which VYVX requests a certificate to
construct facilities." The Commission denied VYVX's
certificate of public convenience and necessity to construct
telecommunications facilities and imposed a fine in the sum of
$197,000 pursuant to Code § 12.1-33. The Commission suspended
$175,000 of the fine, conditioned upon VYVX's compliance with
orders or rules of the Commission or any statute of the
Commonwealth for a period of five years and the payment of
court costs. VYVX appeals.
III.
VYVX contends that the Commission's order constitutes an
unconstitutional burden on interstate commerce. VYVX argues
that Williams has authority to construct facilities for
interstate telecommunications services and that the fiber
optic cable system that was constructed will be used for
interstate commerce. Continuing, VYVX says that the
"Commission ordered a fine as a penalty for construction of
facilities under federal authority to be used in interstate
commerce. This it cannot do." We disagree with VYVX.
The Commerce Clause in the United States Constitution
grants Congress the power "[t]o regulate commerce . . . among
10
the several states." U.S. Const. art. I, § 8, cl. 3. Even
though the Commerce Clause speaks in terms of powers bestowed
upon Congress, the Supreme Court has held that the Commerce
Clause limits the power of the States "to erect barriers
against interstate trade." Lewis v. BT Investment Managers,
Inc., 447 U.S. 27, 35 (1980).
Discussing the scope of the Commerce Clause, the Supreme
Court has stated:
"This limitation upon state power, of course, is by
no means absolute. In the absence of conflicting
federal legislation, the States retain authority
under their general police powers to regulate
matters of 'legitimate local concern,' even though
interstate commerce may be affected. See e.g.,
Raymond Motor Transportation, Inc. v. Rice, 434 U.S.
429, 440 (1978); Great A&P Tea Co. v. Cottrell, 424
U.S. 366, 371 (1976). Where such legitimate local
interests are implicated, defining the appropriate
scope for state regulation is often a matter of
'delicate adjustment.' Ibid., quoting H.P. Hood &
Sons, Inc. v. Du Mond, 336 U.S. [525,] 553 [1949]
(Black, J., dissenting). Yet even in regulating to
protect local interests, the States generally must
act in a manner consistent with the 'ultimate . . .
principle that one state in its dealings with
another may not place itself in a position of
economic isolation.' Baldwin v. G.A.F. Seelig,
Inc., 294 U.S. 511, 527 (1935). However important
the state interest at hand, 'it may not be
accomplished by discriminating against articles of
commerce coming from outside the State unless there
is some reason, apart from their origin, to treat
them differently.' Philadelphia v. New Jersey, 437
U.S. [617] 626-27 [1978]."
11
Lewis, 447 U.S. at 36. Accord Maine v. Taylor, 477 U.S. 131,
137-38 (1986); Kassel v. Consolidated Freightways Corp., 450
U.S. 662, 669-70 (1981).
Applying these principles, we hold that the Commission's
order which imposed a fine upon VYVX does not contravene the
limitations imposed upon the States by the Commerce Clause.
VYVX filed an application to operate intrastate facilities. 2
The Commission imposed a fine upon VYVX because VYVX
participated in the construction of the facilities even though
the Commission had entered orders informing VYVX that
certification was necessary before such construction could
commence. The Commission's order is directed solely to
violations of VYVX, which is incorporated in Virginia, and
which applied for and was granted a certificate to provide
intrastate interexchange service within Virginia. The fine
2
VYVX states that it "is immaterial who built the
facilities because [VYVX] and Williams have federal authority
to construct facilities for interstate telecommunications
service, and the Commission cannot regulate such service
. . . ." VYVX's contention is without merit. VYVX repeatedly
stated before the Commission that it would construct, operate,
and own the facilities that would provide intrastate service
within Virginia. We will not permit VYVX to ignore its
representations before the Commission and assert a contrary
position in this Court. Additionally, the record reveals that
VYVX participated in the construction of the cable network.
Decot testified that VYVX personnel participated in the
construction activities that occurred on his property.
Additionally, Clossin, VYVX's agent, directed construction and
was responsible for resolving disagreements with local
property owners.
12
that the Commission imposed does not affect Williams, a
separate corporate entity. Williams was not before the
Commission, and the Commission did not impose a fine upon
Williams. The Commission's order simply does not restrict
Williams' use of its interstate facilities. 3
IV.
A.
VYVX argues that the Commission's November 25, 1997 order
is unenforceable. This order, among other things, directed
that VYVX cease acquisition of real property or rights therein
by the exercise of eminent domain authority until the
3
We also note that the Telecommunications Act of 1996,
from which Williams derives the power to construct its
interstate telecommunications cable, recognizes the authority
of the States to manage public rights-of-way. The Act
specifically states:
"(b) State regulatory authority
"Nothing in this section shall affect the
ability of a State to impose, on a competitively
neutral basis and consistent with section 254 of
this section, requirements necessary to preserve and
advance universal service, protect the public safety
and welfare, ensure the continued quality of
telecommunications services, and safeguard the
rights of consumers.
"(c) State and local government authority
"Nothing in this section affects the authority
of a State or local government to manage the public
rights-of-way or to require fair and reasonable
compensation from telecommunications providers, on a
competitively neutral and nondiscriminatory basis,
for use of public rights-of-way on a
nondiscriminatory basis, if the compensation
required is publicly disclosed by such government."
47 U.S.C. § 253 (1999).
13
Commission acted upon VYVX's application for certificates of
public convenience and necessity. VYVX contends that the
Commission did not hold a hearing before the entry of that
order and, thus, the order is void. Continuing, VYVX
challenges the legality of the Commission's subsequent order,
dated October 8, 1998, which imposed a fine upon VYVX because,
among other reasons, VYVX failed to comply with the November
25, 1997 order. VYVX also asserts that the November 25, 1997
order violated Article IX, § 3, of the Constitution of
Virginia and Code § 12.1-28.
At the outset, we will not consider VYVX's constitutional
argument because it was not raised before the Commission.
Rule 5:25.
Code § 12.1-28 states in relevant part:
"Before the Commission shall enter any finding,
order, or judgment against any person, it shall
afford such person reasonable notice of the time and
place at which he shall be afforded an opportunity
to introduce evidence and be heard."
Our review of the record reveals that the Commission
complied with this statute because the Commission accorded
VYVX numerous opportunities to be heard. As we have already
stated, the Commission entered an order directing VYVX to
respond to complaints that property owners had filed. The
Commission requested that VYVX declare the legal basis upon
which it relied to acquire property by use of eminent domain.
14
VYVX's response did not necessitate the taking of evidence,
but, rather, required that VYVX set forth the legal basis for
its assertion that it could acquire easements using the power
of eminent domain.
VYVX did not deny before the Commission, and does not
deny here, that VYVX represented to property owners that it
had the power of eminent domain. VYVX admits that it
initiated condemnation proceedings. In VYVX's response to the
Commission's order, VYVX submitted a written explanation of
its purported source of authority to exercise the power of
eminent domain.
VYVX did not request an opportunity to present testimony
before the Commission, and such testimony would have been
unnecessary because the Commission's decision was not
predicated upon factual matters, but, rather, on principles of
law. And, the Commission afforded VYVX a reasonable
opportunity to be heard on the legal questions that were the
subject of the Commission's order.
Furthermore, the Commission did not impose the fine upon
VYVX until the Commission issued its October 1998 order.
Before the entry of that order, VYVX presented evidence,
written depositions, legal memoranda, and oral argument to the
Commission.
B.
15
We also hold that there is no merit in VYVX's contention
that the Commission violated Rule 5:6 of the Commission's
Rules of Practice and Procedure. That Rule states in relevant
part:
"Upon petition of any aggrieved party, or upon its
own motion if necessary for full relief, the
Commission will convert any unresolved valid
complaint to a formal proceeding by the issuance of
a rule to show cause, or by an appropriate order
setting a formal hearing, upon at least ten (10)
days notice to the parties, or as shall be required
by statute."
This Rule is not implicated here because VYVX did not file a
petition requesting that the Commission convert the complaints
to a formal proceeding.
C.
Code § 12.1-33 states in relevant part:
"Any person failing or refusing to obey any order or
any temporary or permanent injunction of the
Commission may be fined by the Commission such sum,
not exceeding $1,000, as the Commission may deem
proper; and each day's continuance of such failure
or refusal shall be a separate offense."
VYVX contends that the November 25, 1997 order commanded only
that it refrain from exercising and asserting its power of
eminent domain, and that VYVX did so. We disagree.
The Commission's November 25, 1997 order stated, among
other things, that VYVX must obtain certification from the
Commission before it constructs its facility and operates as a
utility in this Commonwealth. The Commission, in its October
16
1998 order, concluded that VYVX violated the November 1997
order because it participated in the construction of the
facilities even though it had not acquired the necessary
certification. The Commission's finding is amply supported by
the facts contained in Section II of this opinion. And, we
have stated that a finding of the Commission "will not be
disturbed by us 'unless it is contrary to the evidence or
without evidence to support it.'" Thaxton v. Commonwealth,
211 Va. 38, 43, 175 S.E.2d 264, 268 (1970); Security Bank &
Trust Co. v. Schoolfield Bank & Trust Co., 208 Va. 458, 461,
158 S.E.2d 743, 745 (1968). Thus, we hold that the Commission
did not err in concluding that VYVX had violated the November
25, 1997 order.
V.
A.
VYVX asserts that the Commission did not have
jurisdiction to determine whether a public service company has
the power of eminent domain to acquire easements for
telecommunication facilities. We disagree with VYVX.
We have stated that the "Commission has no inherent power
simply because it was created by the Virginia Constitution;
and therefore its jurisdiction must be found either in
constitutional grants or in statutes which do not contravene
that document." City of Norfolk v. Virginia Electric & Power
17
Co., 197 Va. 505, 514, 90 S.E.2d 140, 146 (1955); Appalachian
Power Co. v. John Stewart Walker, Inc., 214 Va. 524, 528, 201
S.E.2d 758, 762 (1974); see also Commonwealth v. Old Dominion
Power Co., 184 Va. 6, 11-12, 34 S.E.2d 364, 366, cert. denied,
326 U.S. 760 (1945); City of Richmond v. Chesapeake & Potomac
Telephone Co., 127 Va. 612, 619, 105 S.E. 127, 129 (1920).
However, Code § 56-35 states:
"The Commission shall have the power, and be charged
with the duty, of supervising, regulating and
controlling all public service companies doing
business in this Commonwealth, in all matters
relating to the performance of their public duties
and their charges therefor, and of correcting abuses
therein by such companies."
Code § 56-35 confers upon the Commission the duty and the
authority to supervise, regulate, and control public service
companies, including VYVX, in all matters relating to the
performance of their duties and requires that the Commission
correct any abuses by public service companies, such as VYVX.
Here, the Commission had jurisdiction to consider whether VYVX
had abused its status as a public service company by
threatening to exercise the power of eminent domain to acquire
easements from property owners even though VYVX had not yet
received its requested certification from the Commission. 4
4
We reject VYVX's contention that Code § 56-35 limits the
Commission's authority to the supervision or regulation of
"the 'public duties' of utilities for which they impose
18
B.
As we have already stated, the Commission held that VYVX
did not have the power to exercise the right of eminent domain
to acquire easements for its fiber optic lines because it had
not been granted a certificate of public convenience and
necessity. VYVX contends that public service corporations
have the right to acquire easements for facilities to be used
in serving the public and, therefore, it has the right to
exercise the power of eminent domain to acquire such
easements. We disagree with VYVX.
Code § 56-49(2) states in relevant part:
"A public service corporation which has not been
allotted territory for public utility service by the
State Corporation Commission shall acquire lands or
interests therein by eminent domain as provided in
this subdivision for electric lines, facilities,
works or purposes only after it has obtained any
certificate of public convenience and necessity
required for such lines, facilities, works or
purposes under Chapter 10.1 (§ 56-265.1, et seq.) of
Title 56."
In deciding the meaning of this statute, we consider the plain
language contained therein. Haislip v. Southern Heritage Ins.
Co., 254 Va. 265, 268, 492 S.E.2d 135, 137 (1997); Abbott v.
Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990).
'charges' to the public." VYVX's interpretation of the
19
The plain language of Code § 56-49(2) does not permit a
public service corporation which has not been allotted
territory for public utility service by the Commission to
exercise the power of eminent domain to acquire land or
interests therein for electric lines, facilities, works, or
purposes until the public service corporation has obtained a
certificate of public convenience and necessity from the
Commission. Here, VYVX actually filed condemnation
proceedings against landowners to acquire easements even
though it had not obtained a certificate of public convenience
and necessity.
VYVX contends, however, that Code § 56-49(2) does not
apply to it because VYVX "does not propose to acquire property
for 'electric' facilities." Apparently, VYVX believes that
the word "electric" which is contained in the phrase "electric
lines, facilities, works, or other purposes" modifies the
words "facilities, works, or other purposes." VYVX simply
misreads the statute. A plain reading of the statute
indicates that the word "electric" only modifies the word
"lines" because of the punctuation contained in that sentence.
Even though the General Assembly amended Code § 56-49(2) by
eliminating the word "electric" effective July 1, 1999, such
amendment does not affect our analysis. The deletion of the
statute is simply contrary to its plain language.
20
word "electric" from the statute simply expands the types of
lines that fall within the scope of the statutory regulatory
scheme.
C.
VYVX, relying upon Peck Iron & Metal Co. v. Colonial
Pipeline Co., 206 Va. 711, 146 S.E.2d 169, cert. denied, 385
U.S. 823 (1966), and Kricorian v. Chesapeake & Potomac
Telephone Co., 217 Va. 284, 227 S.E.2d 725 (1976), argues that
it acquired the right to exercise eminent domain by virtue of
its incorporation as a public service company. We find no
merit in VYVX's contention.
In Peck Iron & Metal Co., we held that a public service
corporation was not required under Code § 56-265.1(b) of the
Utility Facilities Act to obtain a certificate of public
convenience and necessity before exercising the power of
eminent domain because the public service company was not a
public utility as defined by Code § 56-265.1(b). Peck Iron &
Metal Co., 206 Va. at 717-18, 146 S.E.2d at 173. This statute
states in relevant part:
"'Public utility' means any company which owns
or operates facilities within the Commonwealth of
Virginia . . . for the furnishing of telephone
service."
Code § 56-265.2 of the Utility Facilities Act states in
relevant part:
21
"A. It shall be unlawful for any public utility to
construct, enlarge or acquire, by lease or
otherwise, any facilities for use in public utility
service, except ordinary extensions or improvements
in the usual course of business, without first
having obtained a certificate from the Commission
that the public convenience and necessity require
the exercise of such right or privilege. Any
certificate required by this section shall be issued
by the Commission only after opportunity for a
hearing and after due notice to interested parties."
VYVX, unlike the public service corporation in Peck Iron &
Metal Co., is a public utility and, therefore, is subject to
the provisions of Code § 56-265.2 which prohibits a public
utility from performing certain acts without a certificate of
public convenience and necessity issued by the Commission.
In Kricorian, we held that a public utility was not
required to comply with the provisions of the Utility
Facilities Act by obtaining approval from the Commission
before initiating condemnation proceedings. The utility in
Kricorian, however, unlike VYVX, exercised the power of
eminent domain to acquire property for "ordinary extensions or
improvements in the usual course of business" which is
expressly permitted by Code § 56-265.2. Kricorian, 217 Va. at
289, 227 S.E.2d at 729. VYVX's request for the construction
and extension of facilities does not fall within this
statutory exception.
VI.
22
VYVX argues that the Commission erred by denying VYVX's
request for a certificate of public convenience and necessity.
Continuing, VYVX states that the only reason the Commission
gave for denying the requested certificate was that a
certificate would not be meaningful since the initial phase of
construction had been completed. VYVX also says that this
reason is an erroneous application of Code § 56-265.2, and
that the Commission's order discriminates against VYVX in
favor of other telecommunications companies which construct
such facilities in Virginia.
We have held that "[t]he Commission is given broad
discretionary authority in determining whether a certificate
of public convenience and necessity will be approved."
Stafford Serv. Corp. v. State Corp. Commission, 220 Va. 559,
562, 260 S.E.2d 226, 228 (1979); Bralley-Willett Tank Lines,
Inc. v. Holtzman Oil Corp., 216 Va. 888, 890-91, 223 S.E.2d
892, 895 (1976). This Court has also stated that "[w]e cannot
sit as a board of revision to substitute our judgment for that
of the Commission on matters within its province." Bralley-
Willett Tank Lines, Inc., 216 Va. at 891, 223 S.E.2d at 895;
Atlantic Greyhound Lines of Va., Inc. v. Silver Fox Lines, 204
Va. 360, 363, 131 S.E.2d 284, 286 (1963).
The Commission, upon consideration of the facts and
circumstances before it, concluded that the issuance of a
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certificate of public convenience and necessity would not be
meaningful because VYVX had participated in the construction
of facilities that were the subject of the application in
violation of the Commission's orders. Additionally, the
Commission made a specific finding "that the public interest
and convenience do not require the exercise by VYVX of the
rights and privileges under [Code § 56-265.2]" which include
the power to exercise the right of condemnation to construct,
enlarge, or acquire, by lease or otherwise, any facilities for
use in VYVX's public utility service. We cannot conclude,
based upon the record before us, that the Commission abused
its broad discretion in determining that the issuance of a
certificate would not be in the public interest, particularly
in consideration of VYVX's widespread practice of acquiring
easements with the threat of the power of eminent domain when
it did not possess such power.
We find no merit in VYVX's contention that the
Commission's order discriminates against it in favor of other
telecommunication companies. VYVX ignores the fact that it
was denied a certificate of public convenience and necessity
because of its own acts, and not because of favoritism
directed towards other telecommunications companies that
construct facilities in Virginia. And, the record simply does
not support VYVX's claims of discrimination.
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VII.
We have examined VYVX's remaining arguments and hold that
such arguments are without merit. Accordingly, we will affirm
the Commission's order.
Affirmed.
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