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AGO 1954 No. 346 - November 22, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

REGULATORY JURISDICTION OF THE WASHINGTON PUBLIC SERVICE COMMISSION

The Washington Public Service Commission does not have the jurisdiction to regulate a business which operates a community antenna system for the distribution of television broadcasting.

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                                                               November 22, 1954

Honorable Murray E. Taggart
Prosecuting Attorney
Walla Walla County
Walla Walla, Washington                                                                                                              Cite as:  AGO 53-55 No. 346

Dear Sir:

            We are in receipt of your letter of October 15, 1954, in which you request an opinion as to whether a company known as the Blue Mountain Television Corporation is subject to the jurisdiction of the Washington Public Service Commission.

            In your letter of October 15, you state that this corporation holds a franchise granted by the city of Walla Walla to construct and operate a coaxial cable system for the distribution of television signals throughout the city of Walla Walla.  You also said that the corporation has constructed an antenna tower on the outskirts of the city of Walla Walla where it receives signals from the Spokane television stations, which are then distributed via cables to their subscribers in the city of Walla Walla.  This cable, it appears, is strung on the electrical and telephone poles of the Pacific Power & Light Company and the Pacific Telephone Company, which are used to guide this cable into the city of Walla Walla.  In conclusion, you asked whether a company conducting this type of business is subject to the jurisdiction of the Washington Public Service Commission.

            It is our conclusion that the Washington Public Service Commission does not have jurisdiction over a business which operates a community antenna system for the distribution of television broadcasting.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The answer to your question calls for an analysis of three sections of the Revised Code of Washington.  The first section is RCW 43.53.050, which deals with the general powers and duties of the Commission.  This statute reads as follows:

            "The public service commission shall:

            "(1) Exercise all the powers and perform all the duties prescribed therefor by this chapter and by Titles 22, 80 and 81 [[Titles 22, 80, and 81 RCW]], or by any other law.

            "(2) Regulate in the public interest, as provided by the public service laws, the rates, services, facilities, and practices of all persons engaging in the transportation by whatever means of persons or property within this state for compensation, and related activities; including, but not limited to, air transportation companies, auto transportation companies, express companies, freight and freight line companies, motor freight companies, motor transportation agents, private car companies, railway companies, sleeping car companies, steamboat companies, street railway companies, toll bridge companies, storage warehousemen, and wharfingers and warehousemen.

            "(3) Regulate in the public interest, as provided by the public service laws, the rates, services, facilities, and practices of all persons engaging within this state in the business of supplying any utility service or commodity to the public for compensation, and related activities; including, but not limited to, electrical companies, gas companies, irrigation companies, telegraph companies,  [[Orig. Op. Page 3]] telephone companies, and water companies."  (Emphasis supplied)

            While this section seems to contain a very broad grant of jurisdiction the words "Regulate in the public interest, as provided by the public service law" have a limiting effect on the Commission's authority.  This is due to the fact that the statutes which give the Washington Public Service Commission its jurisdiction to regulate utilities and carriers provide in general only for the regulation of certain specified types of business known as public service companies.  These public service companies are defined in sections 80.04.010 and 81.04.010 of the Revised Code of Washington.  RCW 80.04.010 defines a public service company to include every gas company, electrical company, telephone company, telegraph company, and water company.  RCW 81.04.010 further defines a public service company to include every common carrier.  Common carriers are then defined by this statute as railroads, railroad companies, street railroads, street railroad companies, steamboat companies, express companies, car companies, sleeping car companies, freight companies, freight line companies and every company and every state or town owning, controlling, operating or maintaining any such agency for public use in the conveyance of persons or property for hire.

            It is a general rule of law that when interpreting the intent of the legislature in the enactment of a particular law the express mention of one thing or a class of things in a statute implies that other things of that class are meant to be excluded from the application of the statute.  State v. Thompson, 38 Wn. (2d) 774;Ramsay v. Dept. of Labor and Industries, 36 Wn. (2d) 410 andState ex rel. Port of Seattle v. Dept. of Public Service, 1 Wn. (2d) 102.  A consideration of this rule would seem to indicate that since television companies have been omitted from the wording of these statutes the Washington Public Service Commission has no jurisdiction over their operations.  The effect of this mentioned rule is also reinforced by the fact that the courts of the state of Washington have held in a long line of decisions that the Washington Public Service Commission is a statutory body and has only the power and authority that has been expressly vested in it by the legislature.  As such a statutory body, it is further said that the commission has no inherent powers but only those powers that have been expressly granted to it by the legislature or must by implication be conferred upon it as a necessary incident to the exercise of the powers expressly granted.  State ex rel. P.U.D. v. Dept. of  [[Orig. Op. Page 4]] Public Service, 21 Wn. (2d) 201;State ex rel. P. S. N. Co. v. Dept. of Transportation, 33 Wn. (2d) 448; North Bend Stage Lines, Inc., v. Schaaf, 199 Wash. 621 andState ex rel. North East Transportation Co. v. Schaaf, 198 Wash. 52.

            We realize that an argument could be made in support of jurisdiction by the Washington Public Service Commission along the line of reasoning that is expressed inState ex rel. Spokane United Railroads v. Dept. of Public Service, 191 Wash. 595.  In this case, the court held that although the term "motor buses" is not specifically mentioned within the definition of a common carrier, the operation of motor buses is subject to the jurisdiction of the commission.  Our court in this respect observed as follows:

            "From the fact that, in defining common carriers, the statute mentioned street railroads and street railway companies, but did not mention motor busses, it does not necessarily follow that it was the legislative intent that motor busses should not come under the operation of the law."

            However, this decision calling a motor bus a common carrier, under a statute that mentions street railroads and street railroad companies, could hardly be authority for including a television company under the authority of a statute that mentioned telephone and telegraph companies.  This is due to the fact that a company that offers bus transportation performs a very similar service to that offered by street railroad companies, and to other transportation agencies also defined as common carriers.  However, the business of supplying television programs by a coaxial cable is not a similar utility to any of those mentioned in the statute cited above.  The effect of the reasoning expressed in theSpokane United Railway case is also limited by the later case ofNorth Bend Stage Lines, Inc. v. Schaaf, supra.  This case strictly follows the rule that since the Washington Public Service Commission is a statutory body, its authority is limited to the power vested in it by statute.  Under this case it was held that a charter bus service was not subject to regulation by the Washington Public Service Commission either as a common carrier or as an auto transportation company.

             [[Orig. Op. Page 5]]

            We might also add that it is doubtful in our mind whether the state regulatory bodies have any jurisdiction to regulate television companies at this time, due to the broad authority given to the Federal government under the Federal Communications Act.  The case ofL & B Dumont Laboratories v. Carroll 184 F. (2d) 153, Cert. denied, February 26, 1951, 340 U.S. 929, 95 L.Ed. 670, 71 S.Ct. 490 is authority for this proposition. In this case a regulation which required that all motion picture films intended to be broadcast on television in the state of Pennsylvania be submitted to State Board for censorship purposes was held invalid.  This was said to be due to the fact that television is interstate commerce and Congress, by the Communications Act of 1934, preempted the entire field of regulating communication by radio and television, including that of censorship.  In this case, the court stated on page 156:

            "We think it is clear that Congress has occupied fully the field of television regulation and the field is no longer open to the states."

            See alsoU. S. v. National Football League, 116 Fed. Supp. 327, holding that radio and television are clearly interstate commerce, and 39 Am. Bar Assn. Journal, P. 574.  Based on the reasoning set forth above, it would appear that in spite of some authority to the contrary found in the opinions of the attorneys general in other states, the sounder conclusion in this state under our public service law is that the Washington Public Service Commission does not have jurisdiction over a company supplying television programs by means of a coaxial cable.

Very truly yours,

DON EASTVOLD
Attorney General


QUNBY R. BINGHAM
Assistant Attorney General

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