State ex rel. Utilities Commission v. Public Staff

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HEDRICK, Chief Judge.

At oral argument, counsel for MCI stated that the only question raised by these appeals is whether the Commission violated MCI’s vested right to provide intraLATA service via its own facilities. Appellant argues the order entered on 22 February 1985 gave it a vested property right of which it was unconstitutionally deprived by the Commission’s failure to allow facilities-based intraLATA competition on 1 January 1987. The Public Staff and Southern Bell, appellees, on the other hand, argue the order of the Commission from which these appeals were taken failed to vest in MCI any property right whatsoever. They argue that before MCI could have the right to provide intraLATA service via its own facilities the Commission must issue a certificate of authority to MCI, and that the Commission could not issue this certificate without making the requisite findings of fact pursuant to G.S. 62-110(b), which states:

(b) The Commission shall be authorized to issue a certificate to any person applying to the Commission to offer long distance services as a public utility as defined in G.S. 62-3(23)a.6., provided that such person is found to be fit, capable, and financially able to render such service, and that such additional service is required to serve the public interest effectively and adequately; provided further, that in such cases the Commission shall consider the impact on the local exchange customers and only permit such additional service if the Commission finds that it will not jeopardize reasonably affordable local exchange service.

We hold the order of the Commission in question merely indicated it was the policy of the Commission to allow intraLATA service once all the issues and problems were resolved. While the language in the order of the Commission is less than clear, the statutes are very clear that the Commission could not issue a certificate of authority without making the requisite findings, and MCI assumed the risk that the findings would not be made by 1 January 1987.

*323Affirmed.

Judges Johnson and Orr concur.