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    "parties": [
      "RICHARD C. MOENNING, Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Appellee."
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      {
        "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPlaintiff Richard C. Moenning filed a formal complaint with the Illinois Commerce Commission against defendant Illinois Bell Telephone Company, a privately owned company regulated by the Commission. The gravamen of the complaint relates to Illinois Bell\u2019s practice of requiring a security deposit from customers who have had their telephone service discontinued because of nonpayment of telephone bills. After conducting hearings, the Commission entered an order finding that Illinois Bell could properly request a security deposit from plaintiff. Plaintiff appealed to the circuit court of Cook County, and the court upheld the Commission\u2019s order. Plaintiff appeals.\nPlaintiff resides in Evanston, where he receives residential telephone service from Illinois Bell. Illinois Bell\u2019s records show that during 1980, plaintiff paid April through October bills late. Illinois Bell terminated plaintiff\u2019s residential service for nonpayment of the May 1980 charges, and restored service after late payment was made. Illinois Bell mailed plaintiff disconnect warnings for all seven of the late payments.\nPlaintiff owed Illinois Bell $38.43 for the October 1980 charges. Illinois Bell records show that it sent plaintiff a final disconnect notice for nonpayment of the October charges, in accordance with the Commission\u2019s General Order 197. The disconnect notice is a red card entitled \u201cFINAL NOTICE PRIOR TO DISCONNECTION\u201d and includes information as to how the consumer can complain to Illinois Bell or to the Commission. Plaintiff could not recall whether he received such a notice as to the October bill, and had \u201cno idea\u201d how many similar notices he had received during 1980 or for which months.\nOn December 3, 1980, plaintiff gave Illinois Bell a check for $38.43 to cover the October 1980 bill. It was returned to Illinois Bell on Friday, December 12, 1980, for nonsufficient funds in plaintiff\u2019s account. Illinois Bell\u2019s records indicate that it made an attempt to telephone plaintiff on December 15. Plaintiff\u2019s residential service was disconnected that day. Plaintiff promptly spoke to an Illinois Bell service representative who, according to plaintiff\u2019s testimony, stated that she had attempted to reach plaintiff by telephone.\nPlaintiff had a conference call that day with representatives of Illinois Bell and the Commission to discuss a solution. Plaintiff\u2019s residential telephone service was restored later that evening after he agreed to deliver cash for the October payment.\nIllinois Bell then sent plaintiff a request for a $125 security deposit, and threatened to discontinue his service if the security deposit was not paid. Plaintiff filed a complaint with the Commission requesting a hearing before denial of services and the demand of a deposit, and also asking for \u201ccosts and damages\u201d in the form of credits.\nAfter conducting hearings, the Commission entered its order finding that Illinois Bell\u2019s notice of termination to plaintiff was insufficient under General Order 197 because its attempt to contact plaintiff was unsuccessful; that it was proper to require a security deposit from plaintiff because he was late with his payments more than six times in 12 months; that the security deposit requirement and termination of service did not give rise to a civil rights action under 42 U.S.C. sec. 1983 (1982) or constitute a due process violation; and that public utility transactions were statutorily exempt from the Consumer Protection Act and the Truth in Lending regulations. The Commission also denied plaintiff\u2019s request for cost and damages as being outside its jurisdictional scope.\nIllinois Bell and plaintiff both sought rehearing. The Commission denied plaintiff\u2019s request for rehearing. The Commission did grant Illinois Bell\u2019s petition for rehearing, in which Illinois Bell argued that General Order 197 only required an attempt to.contact a customer on termination date, and that Illinois Bell made that attempt. Plaintiff filed the present action, and the trial court affirmed the Commission\u2019s orders.\nOn appeal, plaintiff contends that the Commission acted without statutory authority in promulgating General Order 197, which allows Illinois Bell to terminate telephone services and require security deposits; that the Commission\u2019s rulings regarding the sufficiency of the termination notice sent to plaintiff and the reasonableness of the security deposit required of plaintiff are against the manifest weight of the evidence; that the termination procedure and security deposit requirement violated 42 U.S.C. sec. 1983 (1982) and due process requirements; that the security deposit requirement violated Federal protection statutes; that the trial court improperly injected its personal feelings, thereby distorting its judgment; that the trial judge made factual errors, indicating he was not familiar with the record; and that the Commission improperly delegated its rule making power.\nPlaintiff initially contends that the Commission does not have the authority to promulgate orders authorizing cash deposits for customers who have made late payments. The legislature does not expressly grant the Commission power to restrict Illinois Bell\u2019s security deposit practices. (See generally Ill. Rev. Stat. 1979, ch. 111\u2154, par. 1 et seq.) The Commission, however, has broad discretion to regulate the rate policies of public utilities. (Alton Water Co. v. Illinois Commerce Com. (1978), 60 Ill. App. 3d 553, 377 N.E.2d 385.) Section 41 of the Public Utilities Act authorizes the Commission to determine just and reasonable rates or other charges, and practices affecting rates or other charges, and to fix the same by order. (Ill. Rev. Stat. 1979, ch. 111\u2154, par. 41.) The trial court was correct in stating that the authority to fix rates necessarily includes credit regulation. A security deposit requirement is a credit practice that falls under the area of rate regulation. See Ill. Rev. Stat. 1979, ch. lll\u2154, par. 10.16; see also Wood v. Public Utilities Com. (1971), 4 Cal. 3d 288, 481 P.2d 823, 93 Cal. Rptr. 455, appeal dismissed (1971), 404 U.S. 931, 30 L. Ed. 2d 245, 92 S. Ct. 293, and 64 Am. Jur. 2d Public Utilities sec. 46 (1972).\nThe soundness of the policy at issue was established when the United States Supreme Court recognized that a utility, like any business, often needs to require security deposits to secure prompt payment. (Southwestern Telegraph & Telephone Co. v. Danaher (1915), 238 U.S. 482, 59 L. Ed. 1419, 355 S. Ct. 655; see also Lucas v. Wisconsin Electric Power Co. (7th Cir. 1972), 466 F.2d 638, cert. denied (1973), 409 U.S. 1114, 34 L. Ed. 2d 696, 93 S. Ct. 928.) In Illinois Telephone Association v. Illinois Commerce Com. (1978), 57 Ill. App. 3d 968, 373 N.E.2d 676, while discussing General Order 197, this court stated at page 972: \u201cQuite obviously, in the promulgation of this order the Commission was functioning under its statutory mandate to have general supervision of all public utilities and to inquire into the management and business of them and to keep itself informed as to the manner and method in which the utilities conduct their business.\u201d For these reasons, we find that plaintiff has failed to show that the Commission lacked authority to promulgate General Order 197, or that the policy requiring security deposits is unreasonable.\nPlaintiff next contends that the Commission\u2019s findings were against the manifest weight of the evidence. The Commission\u2019s findings and conclusions are to be held prima facie true and will not be set aside unless it clearly appears that the findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1983, ch. lll\u2154, par. 72.) The relevant section of General Order 197 requires Illinois Bell to mail a written notice of its intention to discontinue a customer\u2019s service due to nonpayment of the past due bill. The notice must be sent separately from other notices or bills, and service cannot be discontinued for at least eight days after mailing. In addition the company \u201cshall attempt\u201d to advise the customer of the termination at the time it occurs. General Order 197, sec. 303(1).\nIllinois Bell sent a written notice of termination of service to plaintiff in early December; it attempted to telephone him on December 15; and actually terminated service on December 15;- Plaintiff stated that he could not remember whether he had received a final notice, but he may have. Plaintiff also stated that a representative of Illinois Bell told him that she had attempted to reach him.\nUnder its General Order, the Commission permitted Illinois Bell to make a demand for a cash deposit when the customer is late in three out of 12 billing periods or when service has been discontinued for nonpayment. In the present case, plaintiff made late payments seven times in a 12-month period, and had his service discontinued twice. Plaintiff has failed to show the Commission\u2019s findings regarding the propriety of the notice or cash deposit procedures were arbitrary, unreasonable or against the manifest weight of the evidence.\nPlaintiff further contends that the Commission improperly delegated its rate-making power to Illinois Bell. We find that the Commission\u2019s General Order 197 granted no power to Illinois Bell. Instead, it restricted Illinois Bell\u2019s common law power to manage its own credit policies. (See Particular Cleaners, Inc. v. Commonwealth Edison Co. (7th Cir. 1972), 457 F.2d 189, cert, denied (1972), 409 U.S. 890, 34 L. Ed. 2d 148, 93 S. Ct. 107.) We hold .that no improper delegation of power occurred in the present case.\nPlaintiff also argues that the alleged discriminatory termination of plaintiff\u2019s telephone service or demand for a security deposit by Illinois Bell, as authorized by General Order 197, constitutes conduct under color of State action that will subject it to a civil rights action under 42 U.S.C. sec. 1983 (1982). In order to establish such a claim, the conduct must have been engaged in under color of State law and such conduct must have infringed upon a property interest protected by the constitution. Kadlec v. Illinois Bell Telephone Co. (7th Cir. 1969), 407 F.2d 624, cert, denied (1969), 396 U.S. 846, 24 L. Ed. 2d 95, 90 S. Ct. 90.\nIllinois Bell\u2019s management decision to insure credit by requiring security deposits in some cases did not constitute State action. Extensive, detailed regulation of a public utility by the State does not, by itself, convert the utility\u2019s action into State action. (Jackson v. Metropolitan Edison Co. (1974), 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449.) Illinois Bell\u2019s decision to terminate plaintiff\u2019s service was motivated by purely private economic interests. The State receives no direct benefit from enforcement of Illinois Bell\u2019s credit policies. (Kadlec v. Illinois Bell Telephone Co. (7th Cir. 1969), 407 F. 2d 624.) We hold that the nexus between the State and Illinois Bell\u2019s conduct was not sufficient to maintain an action under section 1983. We therefore need not address the constitutional due process issues in relation to Illinois Bell. Lucas v. Wisconsin Electric Power Co. (7th Cir. 1972), 466 F.2d 638, cert, denied (1973), 409 U.S. 1114, 34 L. Ed. 2d 696, 93 S. Ct. 928.\nHowever, because the Commission has a different status than Illinois Bell, different legal principles apply, and we therefore treat the analysis of section 1983 and due process differently. In promulgating General Order 197, the Commission obviously is acting under color of State law. The question, then, is whether the Commission, on behalf of the State, deprived plaintiff of due process. In deciding whether due process safeguards existed before plaintiff\u2019s service was terminated and the security deposit was demanded, we must review the notice to plaintiff of available remedies, and the sufficiency of these remedies. If they satisfy due process requirements, we do not need more. Lucas v. Wisconsin Electric Power Co. (7th Cir. 1972), 466 F.2d 638, cert, denied (1973), 409 U.S. 1114, 34 L. Ed. 2d 696, 93 S. Ct. 928.\nIllinois Bell\u2019s notification procedure, in accordance with General Order 197, clearly informed plaintiff of the availability of an opportunity to voice objections or contact the Commission. The final notice included a statement entitled \u201cCONSUMER INFORMATION\u201d detailing these opportunities. Because plaintiff received seven such notices during 1980, we can hardly say that he had no notice of the opportunity to be heard. (See Memphis Light, Gas & Water Division v. Craft (1978), 436 U.S. 1, 56 L. Ed. 2d 30, 98 S. Ct. 1554.) Plaintiff urges, however, that he needed notice of the fact that his check had been returned for insufficient funds. This notice should have come from his own records or from his bank, but not from Illinois Bell.\nMoreover, plaintiff had an opportunity for a hearing before termination. According to plaintiff\u2019s testimony, he had used informal remedies on numerous occasions. He had made informal arrangements with Illinois Bell to make late payments, and he had met with Illinois Bell and Commission representatives to discuss other alternatives.\nAvailable formal remedies included the route plaintiff eventually chose to take, while his service remained uninterrupted for the five years pending resolution and during which time plaintiff received numerous hearings before several tribunals. Plaintiff was not deprived of due process.\nPlaintiff next contends that the credit policies before us are faulty under the Consumer Credit Protection Act. (15 U.S.C. sec. 1602-03 (1982).) As the trial court properly noted, Illinois Bell is statutorily exempt from these laws. It is not a creditor under the Act, and the security deposit requirements are exempt from the Act because the regulations regarding these deposits are on file with the Commission.\nPlaintiff urges that he was entitled to \u201ccosts and damages,\u201d but the Commission has no general authority to fashion an award of damages. (Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 29 N.E.2d 1014; Ferndale Heights Utility Co. v. Illinois Commerce Com. (1982), 112 Ill. App. 3d 175, 455 N.E.2d 334.) Furthermore, plaintiff has failed to show that he has suffered any pecuniary harm.\nInexplicably, plaintiff also appeals from the trial court\u2019s denial of defendant\u2019s motion to dismiss his action. An appellant can only appeal from those decisions which are adverse to him and cannot appeal from judgments in his favor. (Illinois Bell Telephone Co. v. Illinois Commerce Com. (1953), 414 Ill. 275, 111 N.E.2d 329.) Plaintiff cannot raise the issue before this court.\nPlaintiff also raises numerous allegations that the trial judge\u2019s \u201cinjection of personal feelings,\u201d interfered with the court\u2019s decision. The plaintiff contends that the trial court, burdened by its feelings that' plaintiff should win, gave \u201cmisplaced deference\u201d to defendant\u2019s position. The trial court, after questioning the \u201cmorality\u201d of the utility\u2019s termination of plaintiff\u2019s service and demand for a security deposit, stated:\n\u201cOn the other hand, the Court cannot reverse the Commission on its personal feelings. It can only reverse if the Commission findings in such regard are not supported by the manifest weight of the evidence or that the Commission violated its own rules in those premises.\u201d\nThe trial court stated the proper standard of review, and we find no error in its reasoning, or any abuse in its comments on its personal feelings.\nPlaintiff next contends that the trial court made numerous factual errors in rendering its decision, thus indicating that the court had not thoroughly reviewed the record. Our review of the record, however, indicates that the trial court was thorough and cautious in reviewing the record both during its initial hearing to consider the Commission\u2019s order and at the subsequent hearing to consider plaintiff\u2019s motion for reconsideration. Plaintiff\u2019s claimed factual errors are either miniscule, such as the misstatements as to dates, or are not factual errors at all.\nPlaintiff finally requests that we remand the matter to the Commission with directions to hold hearings in order to establish a \u201cbill of rights\u201d for consumers. We decline to do so, because this would be a usurpation of legislative or administrative functions. See City of Hurst v. Illinois Commerce Com. (1983), 120 Ill. App. 3d 354, 458 N.E.2d 568.\nWe briefly address Illinois Bell\u2019s renewal of its motion to dismiss the appeal because of mootness on the ground that General Order 197 has been repealed and replaced by General Order 218. The new order allows Illinois Bell to impose the security deposit requirement when service has been discontinued twice in one year. The threat of termination of plaintiff\u2019s service is present under either order, and the case is not moot.\nFor the reasons stated, the judgment of the circuit court of Cook County upholding the decision of the Illinois Commerce Commission is affirmed.\nJudgment affirmed.\nMcGILLICUDDY and RIZZI, JJ., concur.",
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    "attorneys": [
      "Richard C. Moenning, of Chicago, for appellant, pro se.",
      "Neil E Hartigan, Attorney General, of Springfield (Hercules F. Bolos and Kathleen Nolan, Special Assistant Attorneys General, of Chicago, of counsel), for appellee Illinois Commerce Commission.",
      "L. Bow Pritchett, Robert Guritz, and Georgia J. Reithal, all of Illinois Bell Telephone Company, of Chicago, for appellee Illinois Bell Telephone Company."
    ],
    "corrections": "",
    "head_matter": "RICHARD C. MOENNING, Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Appellee.\nFirst District (3rd Division)\nNo. 84-2512\nOpinion filed December 18, 1985.\nRichard C. Moenning, of Chicago, for appellant, pro se.\nNeil E Hartigan, Attorney General, of Springfield (Hercules F. Bolos and Kathleen Nolan, Special Assistant Attorneys General, of Chicago, of counsel), for appellee Illinois Commerce Commission.\nL. Bow Pritchett, Robert Guritz, and Georgia J. Reithal, all of Illinois Bell Telephone Company, of Chicago, for appellee Illinois Bell Telephone Company."
  },
  "file_name": "0521-01",
  "first_page_order": 543,
  "last_page_order": 551
}
