[Cite as Westside Cellular, Inc. v. Pub . Util. Comm., 98 Ohio St.3d 165, 2002-Ohio-7119.] 

WESTSIDE CELLULAR, INC., D.B.A. CELLNET, APPELLANT, v. PUBLIC UTILITIES 

COMMISSION OF OHIO ET AL., APPELLEES. 

[Cite as Westside Cellular, Inc. v. Pub. Util. Comm., 98 Ohio St.3d 165, 2002-

Ohio-7119.] 

Public utilities — Telephone companies — Complaint filed with Public Utilities 

Commission by cellular telephone service reseller alleging unlawful 

discriminatory practices by wholesale cellular service providers — 

Commission’s order reversed when it is unlawful, unreasonable, and 

against the manifest weight of the evidence and shows mistake or 

misapprehension on the commission’s part. 

(No. 2001-0960 — Submitted November 13, 2002 — Decided December 26, 

2002.) 

APPEAL from the Public Utilities Commission of Ohio, No. 93-1758-RC-CSS. 

__________________ 

 PFEIFER, J. 

Factual and Procedural Background 

{¶1} Appellant, Westside Cellular, Inc., d.b.a. Cellnet, is a cellular 

telephone service reseller. As such, it purchases cellular service on a wholesale 

basis, rebrands the service, and markets it on a retail basis. On October 18, 1993, 

Cellnet filed a complaint with the Public Utilities Commission of Ohio against 

wholesale cellular service providers, including Cincinnati SMSA Limited 

Partnership, d.b.a. Ameritech Mobile (“Ameritech”). The final amended 

complaint consisted of ten counts asserting that Ameritech and another wholesale 

cellular service provider, New Par and related companies, had discriminated 

against Cellnet by unlawfully providing cellular service, equipment, and features 

to their own retail operations at rates, terms, and conditions more favorable than 
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those that they made available to Cellnet. In its January 18, 2001 opinion and 

order in case No. 93-1758-RC-CSS, the commission broadly agreed with 

Cellnet’s assertions of unlawful discriminatory practices. The commission further 

held that Ameritech and the New Par companies, in violation of commission rules 

and regulations and Ohio statutes, had discriminated against Cellnet by providing 

retail cellular service to end users at rates and upon terms and conditions more 

favorable than those that they made available to Cellnet. 

{¶2} The extent of the damages to Cellnet caused by Ameritech’s 

violations will be established in the lawsuit for damages that has been brought in 

the Cuyahoga County Court of Common Pleas. A central issue in that calculation 

is the time period over which Ameritech discriminated against Cellnet. The 

commission found that with respect to Counts II (discrimination as to wholesale 

customers), V (discrimination in relation to retail customers), and IX (failure to 

make service available), the relevant time frame was 1995 to 1998. Cellnet 

asserted that the appropriate time frame was 1993 to 1998. The commission 

limited the time frame to 1995 to 1998 because it believed that the first 

substantive discussions between Ameritech and Cellnet regarding specific terms 

and conditions of service did not occur until sometime in 1995. Cellnet appeals 

that issue to this court. This is an appeal as of right. 

Law and Analysis 

{¶3} The dispute as to the relevant time period during which Cellnet 

could have suffered economic injury as a result of Ameritech’s refusal to provide 

service or its provision of service only on a discriminatory basis is grounded in 

the commission’s conclusion that no such injury could have occurred until Cellnet 

made a formal request for service or, at the least, made it known to Ameritech that 

Cellnet wished to act as a reseller and considered Ameritech to be denying 

nondiscriminatory service to Cellnet. No party to this appeal has challenged that 

aspect of the commission’s conclusion. The only challenge has been to the 
January Term, 2002 

3 

commission’s determination of the beginning of the period during which Cellnet 

may have suffered economic injury. 

{¶4} In the order the commission concluded that “Cellnet did not 

initially formally pursue the opportunity to serve” as a reseller of Ameritech’s 

service and that Cellnet’s efforts prior to the 1995 discussions with Ameritech 

consisted merely of “informal inquiry regarding the possibility of becoming a 

reseller.” The commission’s conclusion ignored one earlier effort by Cellnet in 

which it quite formally and unequivocally communicated not only to Ameritech, 

but also to the commission, its desire to become an Ameritech service reseller on 

a nondiscriminatory basis, and that Cellnet considered Ameritech to be denying 

Cellnet that service. That earlier effort was Cellnet’s October 18, 1993 complaint 

that resulted seven years later in the commission’s order that is the subject of this 

appeal. 

{¶5} Later, the commission specifically addressed the issue of Cellnet’s 

complaint as follows in its entry on rehearing: 

{¶6} “The Commission rejects Cellnet’s assertions that, through the 

filing of its complaint in 1993, its intentions were clearly stated. The filing of a 

complaint is no substitute for a formal request for service.” 

{¶7} The issue before us is whether the commission’s position as to the 

Cellnet complaint was reasonable and lawful. As we acknowledged in AK Steel 

Corp. v. Pub. Util. Comm. (2002), 95 Ohio St.3d 81, 84, 765 N.E.2d 862: 

{¶8} “As the court said recently in Cincinnati Bell Tel. Co. v. Pub. Util. 

Comm. (2001), 92 Ohio St.3d 177, 179-180, 749 N.E.2d 262, 264-265: 

{¶9} “ ‘We have consistently refused to substitute our judgment for that 

of the commission on evidentiary matters. Cincinnati Gas & Elec. Co. v. Pub. 

Util. Comm. (1999), 86 Ohio St.3d 53, 711 N.E.2d 670; Dayton Power & Light 

Co. v. Pub. Util. Comm. (1983), 4 Ohio St.3d 91, 4 OBR 341, 447 N.E.2d 733; 

Columbus v. Pub. Util. Comm. (1959), 170 Ohio St. 105, 10 O.O.2d 4, 163 
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N.E.2d 167. Traditionally, we have deferred to the judgment of the commission 

in instances involving the commission’s special expertise and its exercise of 

discretion, when the record supports either of two opposing positions. AT&T 

Communications of Ohio, Inc. v. Pub. Util. Comm. (1990), 51 Ohio St.3d 150, 

555 N.E.2d 288; Dayton Power & Light Co. v. Pub. Util. Comm. (1962), 174 

Ohio St. 160, 21 O.O.2d 427, 187 N.E.2d 150. We have held that we will reverse 

a commission order only where it is unreasonable, unlawful, or against the 

manifest weight of the evidence or shows misapprehension, mistake, or willful 

disregard of duty. Cincinnati Gas & Elec. Co., 86 Ohio St.3d 53, 711 N.E.2d 

670; Ohio Edison Co. v. Pub. Util. Comm. (1992), 63 Ohio St.3d 555, 589 N.E.2d 

1292; see R.C. 4903.13.’ ” 

{¶10} While an evidentiary matter, the adequacy of Cellnet’s complaint 

to trigger Ameritech’s liability exposure is a mixed question of fact and law 

appropriate for this court’s consideration and determination. We hold that the 

commission’s conclusion that, as a matter of fact and law, Cellnet’s October 18, 

1993 complaint did not constitute a sufficiently formal written notice to 

Ameritech of Cellnet’s desire to be a retail seller of Ameritech’s wholesale 

cellular service was unlawful, unreasonable, and against the manifest weight of 

the evidence and shows mistake or misapprehension on the commission’s part. 

Therefore, we reverse the commission and hold that the applicable time frame 

commenced October 18, 1993, the date of Cellnet’s complaint. 

Order reversed. 

 MOYER, C.J., DOUGLAS, FARMER and F.E. SWEENEY, JJ., concur. 

 COOK, J., dissents. 

 LUNDBERG STRATTON, J., dissents. 

 SHEILA G. FARMER, J., of the Fifth Appellate District, sitting for RESNICK,

J. 

__________________ 
January Term, 2002 

5 

 COOK, J., dissenting. 

{¶11} The majority concludes that the commission’s determination was 

“unlawful, unreasonable, and against the manifest weight of the evidence and 

shows mistake or misapprehension on the commission’s part.” Given the 

ambiguous nature of the evidence offered by the parties concerning the issue of 

notice to Ameritech and the commission’s competence in interpreting its own 

orders and regulations in assessing that evidence, this court should accord 

deference to the judgment of the Public Utilities Commission and its construction 

of its own rules. AT&T Communications of Ohio, Inc. v. Pub. Util. Comm. 

(1990), 51 Ohio St.3d 150, 154, 555 N.E.2d 288; Dayton v. Pub. Util. Comm. 

(1962), 174 Ohio St. 160, 162, 21 O.O.2d 427, 187 N.E.2d 150. 

{¶12} I do not conclude that the commission abused its discretion here. 

Accordingly, I respectfully dissent. 

__________________ 

LUNDBERG STRATTON, J., dissenting. 

{¶13} Because I believe that the Public Utilities Commission properly 

determined that the allegations made in Cellnet’s complaint against Ameritech are 

limited to the period of time from 1995 to 1998, I respectfully dissent. 

{¶14} An order issued by the commission will not be reversed on appeal 

unless it is “unreasonable, unlawful, or against the manifest weight of the 

evidence or shows misapprehension, mistake, or willful disregard of duty.” 

Cincinnati Bell Tel. Co. v. Pub. Util. Comm. (2001), 92 Ohio St.3d 177, 180, 749 

N.E.2d 262. 

{¶15} The majority’s holding is premised solely upon its determination 

that a complaint is sufficient to constitute a formal request to resell Ameritech’s 

mobile service. In reaching this determination, the majority completely ignores 

Cellnet’s initial communication with Ameritech regarding resale of Ameritech’s 

service and the commission’s analysis of that communication. Because I believe 
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that this information is important in determining the outcome of this case, I will 

address it below. 

{¶16} In 1993, Cellnet’s president spoke over the phone to an Ameritech 

executive regarding Cellnet becoming a reseller of Ameritech’s mobile service. 

However, no such deal materialized. In 1993, Cellnet filed a complaint against 

Ameritech alleging that it discriminated against Cellnet by selling Cellnet’s 

competitors service for less than it offered to sell such services to Cellnet. 

{¶17} With regard to the 1993 phone call, the commission determined 

that “general telephone calls and conversations requesting a meeting to discuss 

the potential of becoming a reseller are no substitute for a formal request for 

service.” The commission concluded that “Cellnet ‘did not initially formally 

pursue the opportunity to serve in a reseller capacity but rather its efforts, at best, 

equated to the level of an informal inquiry regarding the possibility of becoming a 

reseller.’ ” 

{¶18} Although the majority fails to address these communications, 

Cellnet complains that there is no legal requirement that a request for service must 

be formal. However, the commission did not espouse a specific legal standard

for determining the sufficiency of a request for service; it merely made a finding 

of fact in this case that Cellnet’s efforts to request service from Ameritech were 

insufficient to place the onus on Ameritech to provide Cellnet service. 

{¶19} Cellnet argues that its 1993 inquiry about reselling Ameritech’s 

mobile service was sufficient and thus the commission’s order was against the 

manifest weight of the evidence. In support of this assertion, Cellnet offered 

evidence that during the 1993 phone conversation, an Ameritech executive 

provided resale rates to Cellnet’s president and told him that “someone” would 

contact Cellnet about its request to become a reseller. No one from Ameritech 

ever contacted Cellnet, and Cellnet took no further action. Cellnet claims that its 
January Term, 2002 

7 

actions and Ameritech’s inaction were sufficient to prove that Cellnet had 

requested service from Ameritech. 

{¶20} I believe that Cellnet’s evidence does not conflict with the 

commission’s factual finding that Cellnet’s actions were insufficient to be 

characterized as a request for service. Clearly, the commission did not believe 

that merely asking for rates coupled with Ameritech’s failure to call Cellnet back 

could be characterized as a request for service. Therefore, I would affirm the 

commission’s finding that Cellnet did not formally request service from 

Ameritech because we do not substitute our judgment for that of the commission 

on evidentiary matters. Cincinnati Bell, 92 Ohio St.3d at 179, 749 N.E.2d 262. 

{¶21} Cellnet argues that its 1993 complaint put Ameritech on notice that 

Cellnet wanted to resell Ameritech’s mobile service. The majority, while 

ignoring all of the factual findings recited above, finds that the complaint 

constituted notice. I disagree. 

{¶22} A complaint is simply an allegation of facts that must be proven. 

The commission found that the allegations were not proven, i.e., that Cellnet 

never adequately requested service. The majority ignores the commission and 

instead concludes that the complaint became the notice. By doing so the majority 

transforms a complaint from mere allegations that must be proven into the actual 

vehicle of notice. We have thus done away with any need to take the preliminary 

steps, i.e., make an adequate request for service, and instead have substituted a 

complaint as the only necessary demand for service. That has never been the 

purpose of a complaint in our system of American law. We encourage litigation 

only after we address all prerequisites to filing the complaint. Under the 

majority’s decision there is nothing left to prove because the complaint becomes 

the substitute for prior action. If the General Assembly had intended under its 

regulatory scheme that a complaint be sufficient notice, it could have specified so. 
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{¶23} An analogy in the retail context makes the flaw in the majority’s 

decision more obvious. A customer wants phone service. The customer calls the 

phone company and inquires about rates. No one gets back to the customer. The 

customer then sues for service, claiming that no one ever came out and installed 

service, even though the customer never called back, followed up, or actually 

ordered the service. The court then awards the customer damages on the basis 

that the complaint notified the phone company that the customer was really 

serious and wanted service. So instead of being able to answer the complaint and 

deny that the customer ever requested service, the phone company should have 

rushed out after the complaint was filed and installed service immediately. This 

simple analogy illustrates the problem with the majority’s conclusion that a 

complaint equates to a request for service. 

{¶24} We run a grave danger that this decision creates new law in that it 

removes the obligation to take action before the complaint is filed and transforms 

a complaint into a demand. This decision may have implications reaching far 

beyond this case. 

{¶25} The commission made a factual finding: Cellnet never formally 

requested service. Cellnet failed to prove the allegation in its complaint that it did 

make a request for service. The majority does not refute even that factual finding. 

Instead, it transforms the complaint itself into proof of one of its allegations. The 

majority has not really even substituted its judgment; it just created new law to 

warrant its conclusion. 

{¶26} Accordingly, because I believe that the commission’s order was 

reasonable, lawful, and supported by the manifest weight of the evidence, I 

respectfully dissent. 

__________________ 

 Hahn, Loeser & Parks, L.L.P., Robert J. Fogarty, Randy J. Hart and Mark 

D. Griffin; Tricarichi & Carnes and Carla M. Tricarichi, for appellant. 
January Term, 2002 

9 

 Betty D. Montgomery, Attorney General, Duane W. Luckey, Steven T. 

Nourse and Jodi J. Bair, Assistant Attorneys General, for appellee. 

 Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford and Daniel 

W. Costello, for intervening appellees New Par et al. 

 Calfee, Halter & Griswold, L.L.P., Mark I. Wallach, Kevin M. Sullivan 

and James F. Lang, for intervening appellee Cincinnati SMSA Limited 

Partnership. 

__________________