[This opinion has been published in Ohio Official Reports at
86 Ohio St.3d 144.]
CITY OF PARMA ET AL., APPELLANTS, v. PUBLIC UTILITIES COMMISSION OF
OHIO, APPELLEE.
[Cite as Parma v. Pub. Util. Comm., 1999-Ohio-141.]
Telephone companies—Creation of new telephone area code designations in
northeastern Ohio—Complaint challenging telephone company’s plan to
achieve area code relief dismissed by Public Utilities Commission—
Dismissal of complaint by commission reasonable and lawful, when.
(No. 97-2222—Submitted March 31, 1999—Decided July 28, 1999.)
APPEAL from the Public Utilities Commission of Ohio, No. 97-650-TP-CSS.
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{¶ 1} This appeal involves orders of the Public Utilities Commission of
Ohio (“commission”) in a proceeding brought by the city of Parma in which Orange
Village and the city of Bedford Heights joined (collectively, “Parma”) against
Ameritech Ohio (“Ameritech”). Parma challenged Ameritech’s plan to achieve
area code relief by creating a new 440 area code to occupy a portion of the 216 area
code territory in northeastern Ohio that remained after the earlier creation of a new
330 area code territory in the southeastern portion of the original 216 area code
territory (the greater Akron-Canton and Youngstown areas).1 Parma asserted that
the Ameritech plan to split the remaining 216 area code territory was unjust and
1. Ameritech did not seek commission approval of the creation, or boundaries, of the proposed new
440 area code territory, separate and apart from the complaint case. Indeed, there is no legal
requirement of commission approval under the laws of the state of Ohio. The Federal
Communications Commission (“FCC”) has exclusive jurisdiction over the United States portions of
the North American Numbering Plan under Section 251(e)(1) of the Telecommunications Act of
1996. However, at the indirect urging by Parma through Representative Dennis Kucinich, Tenth
Congressional District (Ohio), the FCC delegated its authority to the commission and requested the
commission to review the proposed area code relief plan.
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unreasonable in violation of R.C. 4905.26 and would result in undue or
unreasonable prejudice or disadvantage in violation of R.C. 4905.35.
{¶ 2} After publishing notice and conducting hearings on Parma’s
complaint, the commission issued its August 14, 1997 opinion and order in case
No. 97-650-TP-CSS, wherein it found no violation of R.C. 4905.26 or 4905.35 by
Ameritech and dismissed the complaint. Parma timely filed an application for
rehearing, which was denied by the commission.
{¶ 3} Parma appealed the commission’s orders to this court and Ameritech
intervened as an appellee.
{¶ 4} The cause is before this court upon an appeal as of right.
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Henry W. Eckhart, for appellants.
Betty D. Montgomery, Attorney General, Duane W. Luckey, Steven T.
Nourse and Johnlander C. Jackson-Forbes, for appellee Public Utilities
Commission of Ohio.
Jon F. Kelly, for intervening appellee Ameritech Ohio.
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Per Curiam.
{¶ 5} This appeal concerns telephone area code designations. Pursuant to
Section 251(e)(1), Title 47, U.S.Code, the Federal Communications Commission
(“FCC”) is vested with jurisdiction over the North American Numbering Plan
(“NANP”). The commission determined that Ameritech serves as the “Local
Number or CO Code Administrator” under the NANP for the 216 and 330 area
codes (among others), and that Ameritech’s duties as CO Code Administrator
include (1) the assignment of NXX codes (the three-digit telephone number
prefixes that follow the three-digit area codes2) to telecommunication service
2. Area codes are also known as “numbering plan areas” or NPAs.
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January Term, 1999
providers, (2) the prediction of area code “exhaust,” and (3) the development of
plans for area code relief.
{¶ 6} The case below involved a challenge to the second phase of a
telecommunication industry plan to provide area code relief to northeastern Ohio.
The first of two phases, approved in 1995, resulted in the splitting of the original
216 area code territory and establishing a new 330 area code in its southeastern
portions (the greater Akron-Canton and Youngstown areas). The first phase was
implemented promptly after the plan was approved. The second phase involved the
splitting of the portion of the 216 area code territory remaining after the first split
and designating a portion of that territory by yet another new area code number—
the 440 area code territory.
{¶ 7} Implementation of the second phase of the plan was deferred, pending
the approach of a condition in the remaining 216 area code territory known as area
code “exhaust.” “Exhaust” occurs when no more three-digit NXX prefixes remain
in an area code for assignment to a telephone service provider (carrier).
{¶ 8} Acting in its capacity as CO Administrator, Ameritech projected that,
absent any additional relief, the 216 area code remaining after the first split would
exhaust as early as the second quarter of 1998. Whereupon, Ameritech set about
to develop a plan for implementation of the second phase of 216 area code relief,
with input from telecommunication industry representatives, community leaders,
governmental representatives, the staff of the commission, and the Ohio
Consumers’ Counsel.
{¶ 9} The resultant second-phase plan left the city of Cleveland and closeby Cleveland suburbs or parts of suburbs in the 216 area code territory, with the
farther-out areas being assigned a new 440 area code. As a result, Parma and twelve
other communities were split into a 216 area code and a 440 area code.
{¶ 10} On April 4, 1996, Ameritech held a press conference announcing the
boundaries of a 216/440 area code territorial split. The plan called for an optional
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or permissive dialing phase to begin August 16, 1997, and mandatory dialing to
begin April 4, 1998.
{¶ 11} On June 18, 1997, the city of Parma filed with the commission a
complaint against Ameritech as CO Administrator, asserting that the second phase
of the 216 area code relief plan that split the city of Parma into two area codes was
unjust and unreasonable in violation of R.C. 4905.26 and would result in undue or
unreasonable prejudice or disadvantage in violation of R.C. 4905.35. Dates, times,
and places for hearings on the complaint were established; notices of the hearings
were published in The Plain Dealer, a newspaper of general circulation in Cuyahoga
County; and evidentiary hearings were held in Cleveland on July 21, 1997, and in
Columbus on July 23, 1997. Following the hearings, the commission ruled against
Parma and dismissed Parma’s complaint against Ameritech. Parma has duly
perfected its appeal to this court of the commission’s dismissal of Parma’s
complaint.
Adequacy of Notice
{¶ 12} Parma contends that the commission unlawfully and unreasonably
failed to comply with the controlling notice provisions of R.C. 4905.26, thereby
compelling this court’s reversal of the commission’s orders.
{¶ 13} R.C. 4905.26 is divided into two branches, which have different
notice requirements. From the record of the commission proceedings on appeal, it
is clear that Parma’s complaint was brought under the first branch of R.C. 4905.26.
The first branch consists of the first two paragraphs of the statute and relates to a
complaint “against any public utility, by any person, firm, or corporation ….”
(Emphasis added.) This branch, as it was worded at the time of this case,3 provided
3. Shortly after the commission concluded the proceeding, the General Assembly amended R.C.
4905.26. Amended R.C. 4905.26 took effect a mere five days after the commission journalized its
September 24, 1997 entry on rehearing in the complaint case. The amendment of the first branch
of R.C. 4905.26 eliminated any requirement whatsoever of publication of notice.
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January Term, 1999
that, if the commission finds that reasonable grounds for the complaint are stated,
it shall set a time for hearing and shall notify the complainant and the public utility
thereof. It also provided for publication of notice of the hearing and a statement of
the matters complained of. This branch of the statute required that the notice be
published in a newspaper of general circulation in each county in which the
complaint had arisen and that publication be made not less than fifteen nor more
than thirty days before the hearing.
{¶ 14} The commission in its July 11, 1997 attorney examiner’s entry set
the date, time, and place for the hearing, set forth the form of the notice to be
published (in which the matters complained of were described), and ordered that:
“The Secretary of the Commission should cause publication of the
following legal notice to appear for two consecutive weeks in a newspaper
published, and of general circulation, within Cuyahoga County, Ohio. Publication
should be made in a section other than the legal notice section of the newspaper.”
{¶ 15} The notice, in fact, was published in The Plain Dealer and met all of
the statutory notice requirements contained in R.C. 4905.26, save one.
{¶ 16} The one statutory requirement not met was that publication occur not
less than fifteen nor more than thirty days prior to the date of the hearing. The
notice was published on July 17 and 18, 1997. Since the hearing was scheduled for
July 21, 1997, publication occurred less than fifteen days prior to the hearing date,
being at most four days prior to the hearing. Moreover, publication occurred on
two consecutive days, rather than on two consecutive weeks, as ordered by the
commission. However, there was no statutory requirement in the first branch of
R.C. 4905.26 for more than a one-time publication.
{¶ 17} Parma argues that it has been deprived of due process and that we
should reverse the commission, because the publication of notice of the hearing did
not strictly comport with the requirements of R.C. 4905.26. In support of that
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argument, Parma cites four decisions in which we reversed the commission for
defective or deficient notice of proceedings before it.
{¶ 18} The first two cases involved notices in rate proceedings brought
under R.C. 4909.18 and 4909.19: Commt. Against MRT v. Pub. Util. Comm.
(1977), 52 Ohio St.2d 231,
6 O.O.3d 475,
371 N.E.2d 547, and Assn. of Realtors v.
Pub. Util. Comm. (1979),
60 Ohio St.2d 172,
14 O.O.3d 409,
398 N.E.2d 784.
Neither case involved the notice period. Both cases involved determinations by the
court that the published notices failed to adequately describe new services or
conditions on the provision of services that were included in the proposed tariffs
submitted for commission approval in the respective rate cases.
{¶ 19} Nor did the other two cases cited by Parma involve the notice period.
Allnet Communications Serv., Inc. v. Pub. Util. Comm. (1987), 32 Ohio St.3d 115,
512 N.E.2d 350, involved a reversal of a commission dismissal of a complaint filed
under R.C. 4905.26 without notice and a hearing required by the statute after a
commission finding of “reasonable grounds” for the complaint. Ohio Bell Tel. Co.
v. Pub. Util. Comm. (1992),
64 Ohio St.3d 145,
593 N.E.2d 286, involved reversal
of a commission order in a complaint case brought under R.C. 4905.26 in which no
hearing was held, contrary to the provisions of the statute.
{¶ 20} In short, we do not consider any of these four cases controlling with
respect to this appeal because none of them dealt with the statutory notice period.
{¶ 21} In this case, the published notice provided a sufficient description of
the substance of the complaint and notice was given and a hearing was held. The
attorney examiner’s entry dated July 11, 1997, which was served on the parties,
provided notice of the commission hearing. Also, notice of the hearing was
published in The Plain Dealer twice preceding the hearing, although the hearing
was held less than fifteen days after publication. Moreover, Parma fully and fairly
participated in the hearings on the complaint. The city of Parma’s witness list
indicates that ten days before the commencement of hearings, the city of Parma, by
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January Term, 1999
its attorney, participated in a July 10, 1997 prehearing conference in the complaint
case. And that same witness list, filed with the commission on July 17, 1997,
indicates actual knowledge on the part of the city of Parma of the Cleveland hearing
scheduled for July 21, 1997, and the Columbus hearing scheduled for July 23, 1997.
{¶ 22} No party made any objection to the scheduling of the hearings or to
the publication of notice prior to the filing of the application for rehearing after the
conclusion of hearings and the commission’s issuance of its opinion and order on
August 14, 1997. By failing to raise an objection until the filing of an application
for rehearing, Parma deprived the commission of an opportunity to redress any
injury or prejudice that may have occurred. Wherefore, we do not accept Parma’s
objections to the scheduling or publication of notice of the hearings.
{¶ 23} Indeed, as to the scheduling of the hearings, in the prayer of the
complaint filed June 18, 1997, the city of Parma requested that the commission “
… set a full evidentiary hearing … on the issues raised in this complaint at the
earliest possibility [sic] opportunity.” (Emphasis added.)
{¶ 24} In Worthington Hills Civic Assn. v. Pub. Util. Comm. (1976), 45
Ohio St.2d 11,
74 O.O.2d 40,
340 N.E.2d 411, we were faced with a number of
claimed errors, including a challenge to the form of the notice of a water-rateincrease application. We noted that the challenger there assigned error to various
actions and rulings of the commission, but failed to show “concomitant harm or
prejudice.”
Id. at 12,
74 O.O.2d at 41,
340 N.E.2d at 412. In affirming the
commission’s order, we said that we will not reverse an order of the commission
because of an error, if such error did not prejudice the party seeking reversal, and
we cited Cincinnati v. Pub. Util. Comm. (1949),
151 Ohio St. 353,
39 O.O. 188,
86
N.E.2d 10, and Ohio Edison Co. v. Pub. Util. Comm. (1962),
173 Ohio St. 478,
20
O.O.2d 108,
184 N.E.2d 70. Id. at 13,
74 O.O.2d at 41,
340 N.E.2d at 412.
{¶ 25} The case of MCI Telecommunications Corp. v. Pub. Util. Comm.
(1988), 38 Ohio St.3d 266,
527 N.E.2d 777, is similar to this appeal in that it
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involved a challenge to the adequacy of notice in a commission proceeding. In that
case we observed that the challenger, MCI, had in fact participated in the public
hearing. We said:
“If MCI had objections to the actions that were about to be implemented, it
should have made its objections within that time frame and preferably in that forum.
Nothing in the record indicates that MCI was denied its right to be heard at these
hearings ….” Id.,38 Ohio St.3d at 269,
527 N.E.2d at 780.
{¶ 26} We have previously held that this court will not reverse the
commission for error when there has been substantial compliance with statutory
notice requirements and the complaining party has not shown that it was prejudiced
by the lack of strict compliance. Ohio Bus Line, Inc. v. Pub. Util. Comm. (1972),
29 Ohio St.2d 222,
58 O.O.2d 428,
280 N.E.2d 907, and Valley Greyhound Lines,
Inc. v. Pub. Util. Comm. (1947),
148 Ohio St. 603,
36 O.O. 236,
76 N.E.2d 608.
{¶ 27} Moreover, R.C. 4905.09 reads:
“A substantial compliance by the public utilities commission with the
requirements of Chapte[r] … 4905 … of the Revised Code is sufficient to give
effect to all its rules, orders, acts, and regulations. Such rules, orders, acts, and
regulations shall not be declared inoperative, illegal, or void for an omission of a
technical nature in respect to such requirements. … ” (Emphasis added.)
{¶ 28} Based on the foregoing, we reject Parma’s argument that it has been
denied due process by virtue of the commission’s less than strict compliance with
the notice publication requirements of R.C. 4905.26.
Alternatives to the Planned Area Code Split
{¶ 29} Parma argues that there are potential alternatives to Ameritech’s
proposed split of the 216 area code territory that could delay or possibly eliminate
the need for the split.
{¶ 30} The commission considered the options presented by Parma’s expert
witness and expressed the belief that they were deserving of further consideration.
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January Term, 1999
However, the commission concluded that, because of the exigencies of the fastapproaching, already-scheduled conversion of 216 NPA telephone number prefixes
to 440 NPA prefixes, it was not feasible to implement any of the proposed
alternatives in the case before it.
{¶ 31} Moreover, the mere showing of the existence of alternatives to
immediate splitting of an area code territory does not constitute a showing that
splitting an area code territory is unjust, unreasonable, unjustly discriminatory, or
otherwise in violation of R.C. 4905.26 or 4905.35.
{¶ 32} In addition, we do not accept Parma’s argument that the commission
erred by not enforcing strict compliance with the NPA Code Relief Planning and
Notification Guidelines (1997) (“Guidelines”).4 In the first place, the Guidelines
are merely what they are entitled—“guidelines”—and there is no requirement that
an area code relief plan strictly conform to the Guidelines.
{¶ 33} Nevertheless, the requirements of the Guidelines were neither
forgotten nor ignored; the Guidelines and their applicability were thoroughly
reviewed by the commission. The commission received extensive testimony on the
applicability of the Guidelines, and the parties briefed the issues raised. Parma
simply disagreed with Ameritech and with the commission on the meaning of the
Guidelines and their applicability. We find that even though Ameritech’s area code
relief plan did not strictly comport with the Guidelines, the commission’s approval
of that plan did not constitute reversible error by the commission.
Standard of Review by the Ohio Supreme Court
{¶ 34} Appeals of commission decisions are subject to the standard of
review contained in R.C. 4903.13, which provides in part:
4. The Guidelines were adopted by an Industry Numbering Committee with the purpose of
providing guidelines for NPA code relief planning activities.
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“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.”
{¶ 35} This court has consistently interpreted the statutory standard of
review as follows:
“In MCI Telecommunications Corp. v. Pub. Util. Comm. (1988), 38 Ohio
St.3d 266, 268,
527 N.E.2d 777, 780, we repeated our interpretations of this
standard, stating:
“ ‘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.
{¶ 36} Our review of the record indicates that sufficient probative evidence
was adduced before the commission to show that its determinations were just and
reasonable and not manifestly against the weight of the evidence. Nor were they
so clearly unsupported by the record as to show misapprehension, mistake, or
willful disregard of duty. Therefore, we find that the commission’s orders were
lawful and reasonable under R.C. 4903.13, and they are hereby affirmed.
Orders affirmed.
MOYER, C.J., DOUGLAS, P. BRYANT, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
PEGGY BRYANT, J., of the Tenth Appellate District, sitting for RESNICK, J.
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