{ "id": 1575575, "name": "FIRST CENTRAL SERVICE CORPORATION and Dona Ana Inns, Inc., Plaintiffs-Appellants, v. MOUNTAIN BELL TELEPHONE and Audrey Farmer, Defendants-Appellees", "name_abbreviation": "First Central Service Corp. v. Mountain Bell Telephone", "decision_date": "1981-01-27", "docket_number": "No. 4826", "first_page": "509", "last_page": "513", "citations": [ { "type": "official", "cite": "95 N.M. 509" }, { "type": "parallel", "cite": "623 P.2d 1023" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "58 N.M. 200", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "58 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587661 ], "weight": 3, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0197-01" ] }, { "cite": "75 A.L.R.3d 700", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1977, "opinion_index": 0 }, { "cite": "75 A.L.R.3d 692", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1977, "opinion_index": 0 }, { "cite": "313 So.2d 184", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9636443, 2546430 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/so2d/313/0184-01", "/ala/294/0144-01" ] }, { "cite": "294 Ala. 144", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 2546430 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ala/294/0144-01" ] }, { "cite": "382 F.2d 630", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2076015 ], "opinion_index": 0, "case_paths": [ "/f2d/382/0630-01" ] }, { "cite": "169 So.2d 36", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9830466 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/so2d/169/0036-01" ] }, { "cite": "152 So.2d 203", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9850363 ], "opinion_index": 0, "case_paths": [ "/so2d/152/0203-01" ] }, { "cite": "578 S.W.2d 795", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9952358 ], "year": 1979, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/sw2d/578/0795-01" ] }, { "cite": "268 S.C. 92", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2138295 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/sc/268/0092-01" ] }, { "cite": "315 A.2d 40", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1974, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "126 N.J.Super. 417", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 317082 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nj-super/126/0417-01" ] }, { "cite": "365 F.2d 486", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2066744 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/f2d/365/0486-01" ] }, { "cite": "382 F.2d 627", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2075957 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/382/0627-01" ] } ], "analysis": { "cardinality": 643, "char_count": 12816, "ocr_confidence": 0.837, "pagerank": { "raw": 6.417662089239998e-08, "percentile": 0.39667853222330723 }, "sha256": "dc7434267517da5aba4827049575b44b5e135a05c47aafa47746e66000379ff6", "simhash": "1:76bb504210837197", "word_count": 2058 }, "last_updated": "2023-07-14T19:05:15.389388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ and WALTERS, JJ., concur." ], "parties": [ "FIRST CENTRAL SERVICE CORPORATION and Dona Ana Inns, Inc., Plaintiffs-Appellants, v. MOUNTAIN BELL TELEPHONE and Audrey Farmer, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThrough legal proceedings, First Central Service Corporation and Dona Ana Inns, Inc., its wholly owned subsidiary, obtained possession of Las Cruces Inn, not a party to this action, the telephone number of which was 524-3671. First Central wanted continued and uninterrupted service of this telephone number. Mountain Bell claimed a prior indebtedness of Las Cruces Inn in the amount of $5,581.00 for service rendered this telephone number. It agreed to continue the service under this telephone number if the prior bill were paid, or if the bill were not paid, it would render continued service under a different number.\nFirst Central filed a verified complaint for damages and an application for a temporary restraining order. On the same day, and without notice, a temporary restraining order was issued and the matter set for hearing.\nAt the hearing, the president of First Central testified that, in dealing with the public interest, its business would be seriously affected if there was a change in phone number. He also testified that First Central did not owe the money.\nMountain Bell, without any objection, introduced in evidence Mountain Bell\u2019s General Exchange Tariff, Section 20, Sixth Revised Sheet, approved by the State Corporation Commission. Paragraphs N(l) and N(2) read:\n1. The subscriber has no property right in the telephone number nor any right to continuance of service through any particular central office, and the Telephone Company may change the telephone number or central office designation of a subscriber whenever it considers it desirable in the conduct of its business.\n2. In any case where existing service is continued for a new subscriber, the telephone number may be retained by the new subscriber only if the former subscriber consents and an arrangement acceptable to the Telephone Company is made to pay all outstanding charges against the service.' [Emphasis added.]\nThe trial court entered a Final Judgment in \"which it made findings of fact. Among them were:\n8. That if plaintiffs are not willing to pay the outstanding charges against said phone service, Mountain Bell Telephone has an absolute right to discontinue use of the same phone number.\n10. That within five days from the entry of this judgment plaintiffs are required to elect whether or not they will pay to the defendant, Mountain Bell Telephone, the outstanding charges ... or . . . elect to not pay ... (First Central elected not to pay).\n11. ... In the event the plaintiffs decide or determine that they will appeal this decision ... this judgment is stayed and the temporary restraining order will continue in effect until the further order of an appellate court.\nThese findings were carried forward in the judgment from which First Central appealed. We affirm.\nThe only issue on this appeal is whether the trial court\u2019s construction of the applicable tariffs was erroneous.\nMountain Bell is subject to the provisions of the \u201cTelephone and Telegraph Company Certification Act.\u201d Section 63-9-1, N.M.S. A.1978, et seq.\nSection 63-9-7(B) provides in pertinent part:\nThe holder of a certificate [Mountain Bell] shall render continuous and adequate service to the public and shall not discontinue, reduce or impair service ... except ordinary discontinuance of service for nonpayment of charges.... [Emphasis added.]\nIt is a matter of public policy that Mountain Bell can discontinue service for nonpayment of the charges incurred by Las Cruces Inn. It is also the law that a tariff required to be filed is not a contract. It is the law. Shehi v. Southwestern Bell Telephone Company, 382 F.2d 627 (10th Cir. 1967); Carter v. American Telephone and Telegraph Co., 365 F.2d 486 (5th Cir. 1966). \u201cAs such, it is binding upon subscribers whether the customer actually knows of the regulation or not.\u201d Essex County Welfare Bd. v. New Jersey Bell Tel. Co., 126 N.J.Super. 417, 315 A.2d 40, 42 (1974), or whether the subscriber has specifically agreed to it or not, Clarke v. General Tel. Co. of Southeast, 268 S.C. 92, 232 S.E.2d 26 (1977).\nA telephone utility \u201chas the right to establish reasonable rules and regulations for furnishing service to patrons and for the conduct of its business. Ordinarily regulations so made will be presumed to be reasonable and necessary, unless the contrary is shown.\u201d Southwestern Bell Tel. Co. v. Reeves, 578 S.W.2d 795, 799 (Tex.Civ.App. 1979).\nFirst Central is a subscriber for telephone service. It has no property right in telephone number 524-3671. It knows that Mountain Bell may change the telephone number whenever it considers it desirable in the conduct of its business. Mountain Bell decided that First Central can retain the existing service it if pays all outstanding charges against the service. First Central refused to pay contrary to Tariff N(2). Mountain Bell had an absolute right to discontinue use of the same telephone number.\nThe trial court\u2019s construction of the unmistakably clear language of the tariffs was not erroneous. It was the only conclusion to reach under the various rules used to construe the meaning of the language of the law.\nFirst Central argues that a telephone company cannot deprive a subscriber of the use of a telephone number because it is a valuable asset of a business. It relies on Clayton Home Equip. Co. v. Florida Tel. Corp., 152 So.2d 203 (Fla.App.1963), and Johnson v. Southern Bell Telephone and Telegraph Company, 169 So.2d 36 (Fla.App. 1964). This rule is applicable where, after a telephone number is given a subscriber in business, the telephone company, without any justifiable cause, assigns the telephone number to another subscriber, or refuses to assign to his new business a subscriber\u2019s telephone number listed in his name. These are contract cases, not affected by statutes or tariffs.\nIn Shehi, supra, the telephone company cut off Shehi\u2019s service for his failure to pay. It reactivated the telephone number, formally held by Shehi, and assigned it to a competitor. The telephone company asserted that, when the phone service was properly terminated for nonpayment of charges, it had an unqualified right to treat the disconnected number as its sole property. It relied on paragraph N(l), \u201cno property right\u201d tariff, supra. The court said:\n. . . The tariff provision negatives any claim of a customer to a property right in a telephone number but cannot be construed to authorize the telephone company to exercise arbitrary dominion over the number so as to cause harm and injury to another. [382 F.2d 630.]\nShehi falls short of the answer in the instant case because of the absence of paragraph N(2), supra. We may assume that Shehi led Mountain Bell to issue paragraph N(2) to protect itself.\nFirst Central urges this Court to adopt the decision in Price v. South Central Bell, 294 Ala. 144, 313 So.2d 184 (1975), 75 A.L.R.3d 692 (1977). The facts are the same, the tariffs are different. In Alabama, when a new subscriber desires to continue the use of the old subscriber\u2019s number, but will not pay the old subscriber\u2019s bill, the new subscriber is entitled to continuous service under the old number if \u201cthere exists no relationship, business or otherwise, between the old and new subscribers.... \u201d Under the Alabama tariffs, First Central, if it had no relationship with the old subscriber, would be entitled to continuous service without payment of the prior bill of* Las Cruces Inn.\nParagraph N(2), supra, under which First Central is bound, sets forth a tariff of opposing force. First Central is entitled to retain the old subscriber\u2019s telephone number \u201conly if ... an arrangement acceptable to the Telephone Company is made to pay all outstanding charges against the service.\u201d This \u201carrangement\u201d to pay is not an obstacle because First Central admits that it is able- to pay. Omitting the \u201carrangement,\u201d First Central is entitled to continuous service \u201conly if it pays the outstanding charges against the service.\u201d The cases above discussed appear in the Annot. Telephone Company\u2019s Right to Change Subscriber\u2019s Telephone Number, 75 A.L.R.3d 700 (1977).\nMountain Bell\u2019s position is fair and reasonable. It is compelled by law to render continuous and adequate service to the public. As a result, losses for service rendered occur when subscribers in business ventures fail. Among others who suffer losses are those who finance business adventures that fail. Companies like First Central, however, are not compelled to finance business adventures. Its losses occur due to adverse economic conditions or lack of acumen in its business operation. Between two reliable and innocent corporations which render service to a business venture, a utility which is compelled by law to render service can protect itself from the other by use of tariffs or regulations approved by a state agency. That business corporation which is not compelled by law to render service has no legal method by which it can protect itself against the utility. It must seek protection by way of indemnity or otherwise from the business to which it rendered service.\nFirst Central is charged with knowledge of Mountain Bell\u2019s rights with respect to change of telephone numbers. It cannot plead \u201cignorance of the law,\u201d a maxim sanctioned by centuries of experience because \u201cIgnorance of the law is no excuse.\u201d Mountain Bell is not charged with knowledge of First Central\u2019s relationship with a subscriber. Under these circumstances, First Central is at fault for its failure to protect itself. It must, therefore, suffer the loss of paying the prior charge or the loss incurred with a changed number.\nThe trial court correctly decided that Mountain Bell had an absolute right to discontinue service rendered Las Cruces Inn on its number 524-3671 for failure of First Central to pay the outstanding charges.\nMountain Bell claims that \u201cthe Doctrine of Exhausting of Administrative Remedies clearly applies to this case.\u201d Mountain Bell is mistaken. Neither Article XI, Section 7 of the New Mexico Constitution nor the \u201cTelephone and Telegraph Company Certification Act\u201d grants the State Corporation Commission general power and exclusive jurisdiction. Smith v. Southern Union Gas Co., 58 N.M. 197, 269 P.2d 745 (1954) demands an exhaustion of administrative remedies whenever a state agency is granted \u201cgeneral and exclusive power and jurisdiction to regulate and supervise every public utility in respect to its . . . service regulations.... \u201d Section 62-6-4, N.M.S.A.1978. This power and jurisdiction is limited to the Public Service Commission which governs electrical, gas and water utilities.\nUnder Section 63-9-11(A) of the Telephone and Telegraph Company Certification Act,\nComplaint may be made by any interested party setting forth any act or omission by a telephone company alleged to be in violation of any provision of this act. . .. [Emphasis added.]\nFirst Central could have filed a complaint before the State Corporation Commission under the above Act. It preferred the courts. Even though the results would probably be the same, expenses and delay were avoided.\nIn enacting the Certification Act, the legislature might have been affected by the personal views of Justice McGhee in Smith. He said:\nThe writer has scant regard for this statute by which the appellant may at the whim of the commission be compelled to journey to Santa Fe with his witnesses and lawyer to present what should be a simple matter of proof, and then take his appeal to the district court if he be dissatisfied with the decision, but has reluctantly concluded the statute . . . must be upheld unless we are to overrule many of our former decisions and emasculate a large portion of our administrative law, a result which he believes many informed people would not regret. [58 N.M. 200-201, 269 P.2d 745.]\nThe writer of this opinion agrees with Justice McGhee. No utility commission or state agency should be allowed to usurp the jurisdiction granted district courts under Article VI, Section 13 of the New Mexico Constitution.\nThe judgment of the district court is affirmed except as to the continuance of the temporary restraining order. The temporary restraining order is dissolved. Telephone service under number 524-3671 shall be discontinued immediately unless First Central pays the outstanding charges against this service.\nFirst Central shall pay the costs of this appeal.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Charles W. Cresswell, Nina H. Adamson, Martin, Martin, Lutz & Cresswell, P. A., Las Cruces, for plaintiffs-appellants.", "H. Perry Ryon, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "623 P.2d 1023\nFIRST CENTRAL SERVICE CORPORATION and Dona Ana Inns, Inc., Plaintiffs-Appellants, v. MOUNTAIN BELL TELEPHONE and Audrey Farmer, Defendants-Appellees.\nNo. 4826.\nCourt of Appeals of New Mexico.\nJan. 27, 1981.\nCharles W. Cresswell, Nina H. Adamson, Martin, Martin, Lutz & Cresswell, P. A., Las Cruces, for plaintiffs-appellants.\nH. Perry Ryon, Albuquerque, for defendants-appellees." }, "file_name": "0509-01", "first_page_order": 541, "last_page_order": 545 }