dissenting:
The practical effects of the majority opinion are: First, Bell is being permitted to engage in Bellboy service without any surveillance or regulation by the Illinois Commerce Commission of the new facilities Bell must construct in order to provide this service. Second, Bell will be permitted to enter into competition with certificated utilities such as the appellants in this case without proving that a public need for such competition exists. The first-in-the-field doctrine prevents a public utility from taking the business of another already in the field unless it is shown that the services and facilities being provided by the existing utility are inadequate. (See Illinois State Telephone Co. v. Illinois Commerce Com. (1968), 39 Ill. 2d 239, 243, 234 N.E.2d 769.) However, this doctrine can be raised only in a certificate case, and the Illinois Commerce Commission by its ruling that Bell need not apply for a certificate denied appellants the opportunity to seek protection under this doctrine.
Section 55 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. Ill 2/3, par. 56) is the keystone of public.utility regulation in Illinois. It requires a utility to come before the Illinois Commerce Commission to seek authority for expenditures for the construction and operation of new facilities. Applications for certificates of public convenience and necessity have an important bearing on rate regulation and service regulation since these flow from the initial certificate procedure. Without that regulation, a utility might allocate substantial sums of money to a project, and later base a request for higher rates on such expenditures.
Section 55 requires a utility to submit to the certification procedure before it begins the construction of any new plant, equipment, property or facility except for substitutions, extensions or additions to those already in existence. T o make section 55 meaningful, I believe that the exception stated therein should be strictly construed. While section 55 speaks in terms of tangible things such as plant, equipment or facilities, it is necessary to analyze the type of service contemplated as a result of the new construction or equipment because the section has been interpreted to require determination as to whether the new plant and equipment is for the purpose of providing a new and different service as compared with an improvement in or extension of service already being supplied. In State Public Utilities Com. ex rel. Pike County Telephone Co. v. H. G. Noble (1916), 275 Ill. 121, 128, 113 N.E. 910, the court said:
“The test whether the new construction is entirely new or is an extension of an existing plant is the determination as to whether or not it is a construction to further the same kind of business or to instaU a new service.”
Thus, to the extent a newly constructed plant or newly provided equipment is used for a new and different service, Bell is required to obtain a certificate.
Appellants concede that Bell has the right to improve the landline telephone service it is providing by new technology without obtaining a new certificate of convenience and necessity each time there is an improvement in telephone technology. The introduction of extension phones, for example, did not require certification since this only involved the use of new equipment to provide the same basic landline telephone service. Similarly, public pay phones merely made traditional telephone communication available to the public outside homes and offices and on a pay-as-you-go rather than monthly charge basis.
The Bellboy facility, however, is an entirely new service. It does not involve two-way communication which is the traditional function of telephone use (compare Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill. 2d 205, 302 N.E.2d 334) or even voice communication. A telling argument in support of the appellants’ position that Bellboy service is not an extension of or addition to telephone communications is that the appellants have rendered a service comparable to Bellboy for several years without being thought of by the public, Bell or the Illinois Commerce Commission as telephone companies.
I do not view the Bellboy one-way radio paging as telephone service. Even though radio-paging companies may use telephone lines to facilitate the services they provide, the same could be said of most service businesses. A paging service facilitates the completion of telephone calls, but this does not make it an extension of or addition to telephone communication. Sending a message by mail or messenger requesting a person to be available at a time and place to receive a phone call would increase the ratio of completed calls, but this could not realistically be regarded as constituting telephone service. I, therefore, respectfully disagree with the majority’s conclusion that the Bellboy operation is an extension of telephone communication and for that reason Bell should be excused from seeking a certificate authorizing the Bellboy operation.
Assuming that Bell has “grandfather rights,” an assumption vigorously disputed by the appellants, such rights do not extend to pocket-paging service. Bell was not providing this service in 1921 (the year in which section 55 was enacted in its present form) or previously; to hold that Bell is required to obtain a certificate for Bellboy service would in no way be inconsistent with the purpose of “grandfathering” legislation which is to allow the uninterrupted conduct of an existing business.
I regard the result reached by the majority as contrary to the public policy expressed in section 55 of the Public Utilities Act. The appellants in this case have been certificated by the Illinois Commerce Commission to provide radio-paging service. Before authorizing the appellants to provide their service, the Commission held hearings to determine their technical and financial capacity as well as the public need for radio paging. In following this procedure, the Illinois Commerce Commission was fulfilling its statutory duty. The result of the majority opinion, however, is that Bell is permitted to engage in a business which the majority concedes is similar to the service offered by appellants without exposing itself to the stringent inquiry and regulation to which other radio-paging services have rightly been subjected. This represents an abdication by the Illinois Commerce Commission of its responsibility through an erroneous interpretation and application of section 55 of the Public Utilities Act and a mistaken view of the true character of radio-paging service.
Finally, I do not believe that the appellants are barred by orders of the Federal Communications Commission in a proceeding in which they were participants. In Radio Relay Corp. v. F.C.C. (2d Cir. 1969), 409 F.2d 322, 326, the court observed that the Communications Commission found one-way signaling was a “logical extension” of telephone service because it increased the ratio of completed phone calls. The Communications Commission in reliance on this finding allocated radio frequencies to Bell. The quick answer to the contention that those proceedings bar appellants’ complaint is that neither the Federal Communications Commission nor the United States Court of Appeals for the Second Circuit purported to construe and apply section 55 of the Illinois Public Utilities Act, the statute which this appeal involves, and Bell’s rights under that statute.