Consolidated Edison Company of New York v. Public Service Commission of New York

PETITIONER: Consolidated Edison Company of New York
RESPONDENT: Public Service Commission of New York
LOCATION: Rincon Island

DOCKET NO.: 79-134
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: New York Court of Appeals

CITATION: 447 US 530 (1980)
ARGUED: Mar 17, 1980
DECIDED: Jun 20, 1980

ADVOCATES:
Joseph D. Block - on behalf of the appellant
Schiff -

Facts of the case

Question

Media for Consolidated Edison Company of New York v. Public Service Commission of New York

Audio Transcription for Oral Argument - March 17, 1980 in Consolidated Edison Company of New York v. Public Service Commission of New York

Warren E. Burger:

We will hear arguments first this morning in 79-134, Consolidated Edison Company v. the Public Service Commission of New York.

Mr. Block, I think you may proceed whenever you are ready.

Joseph D. Block:

Mr. Chief Justice, and may it please the Court.

This is an appeal from the New York State Court of Appeals which upheld that an order of the State Public Service Commission prohibiting utilities in New York State from communicating with their customers on controversial matters of public policy by means of messages enclosed with the utility bills.

We call these messages bill inserts.

The order prevented Consolidated Edison Company and the other utilities from communicating with their customers in the most effective way available on issues that are directly related to the company's business providing energy in New York City and Westchester County.

And these issues also are -- have a direct impact on our consumer public.

Byron R. White:

The order didn't prevent a separate mailing with the same information?

Joseph D. Block:

It did not.

Byron R. White:

Yes.

Joseph D. Block:

Because we felt that the order prevented us from speaking out through the medium of bill inserts we challenged the order below before the Commission and also before the State court on the ground that it violated Consolidated Edison Company's freedom of speech and freedom of press under the First and Fourteenth Amendments and also that the reference in the order to controversial matters of public policy were so vague that it brought into play this rule under the due process clause of the Amendment.

William H. Rehnquist:

Mr. Block, does Con Ed have a franchise and a monopoly in its territory?

Joseph D. Block:

It is the only utility authorized to serve that area.

William H. Rehnquist:

Could a private utility simply come in and start soliciting Con Ed's customers?

Joseph D. Block:

It would have to have the permission of the State Public Service Commission to enter our service area.

Private building owners are free without permission to install their own generating building.

William H. Rehnquist:

Con Ed does get certain benefits from the State than an ordinary private citizen doesn't get?

Joseph D. Block:

Con Edison is protected from competition in exchange for which it is subject to very strict regulation, not only as to its rates but as to its service and practically every aspect of its business.

And the reason of course is it is economically unsound to permit two utilities to come into the same area and install the same facilities and to compete.

Because of the great amount of capital involved in this business it would be disadvantageous to the consumer.

This is a matter of social policy and it is accepted and we do get the benefit but we have the obligation.

We have the statutory obligation to render adequate and reliable service at reasonable cost.

And it is in pursuance of that business that we feel it is necessary for us to communicate with our customers on issues that are current and which affect our ability to serve them and which affect their well-being.

Warren E. Burger:

Along with your monopoly you are not free to charge any rates you want either, are you?

Joseph D. Block:

We are not.

Our rates are fixed by the Commission after extensive public hearings and it is not only our rates but, as I say, every aspect of our business is closely regulated.

We think the court below paid a great deal of attention to the fact that we were a franchised monopoly and although they didn't say this in their opinion there are things in their opinion that can only be explained by the fact that we have a monopoly status.

And I want to turn to the court's opinion because they started off by treating this order of the Commission as a valid time, place and manner restriction.

Now, the Virginia Pharmacy case that this Court decided in 1976 specified exactly what the elements of a proper, time and place and manner restriction area.

And there are three -- three requirements, all of which must be present.