Present:   All the Justices

VYVX OF VIRGINIA, INC.
                       OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 990285              September 17, 1999

JOHN W. CASSELL, ET AL.

              FROM THE STATE CORPORATION COMMISSION

                                I.

      In this appeal of an order entered by the State

Corporation Commission ("Commission"), we consider the

validity of a fine that the Commission imposed upon VYVX of

Virginia, Inc. ("VYVX"), and whether the Commission erred in

denying VYVX's application for authority to construct and

acquire fiber optic telecommunications facilities for

intrastate purposes.

                                II.

      Williams Communication, Inc. ("Williams") is a Delaware

corporation which is licensed to conduct business in Virginia.

Williams, through its subsidiaries, conducts a

telecommunications business throughout the United States and

internationally.   In 1997, Williams began to construct a new

fiber optic cable system that would extend from Houston,

Texas, to Manassas, Virginia.   The cable system would be

capable of transmitting 34,000,000 simultaneous long-distance

telephone calls and would be installed between existing gas
pipelines owned by Williams' subsidiary, Transcontinental Gas

Pipeline Corporation.

     The Federal Communications Commission granted Williams

authority to operate its interstate and international

telecommunications systems.    Even though Williams intended to

provide interstate service on its cable system, Williams also

desired to utilize the system to provide intrastate service

within Virginia.   In furtherance of its goal to provide

intrastate service within Virginia, Williams created a

subsidiary, VYVX, which was incorporated in Virginia as a

public service corporation.

     On April 23, 1997, VYVX filed with the Commission an

application for a certificate of public convenience and

necessity to provide interLATA telecommunication services

within Virginia and to have rates established based on

competitive factors. 1   VYVX stated in its application that it



     1
       The phrases "interLATA service" and "LATA" are defined
in the Telecommunications Act of 1996, 47 U.S.C. § 151, et
seq. "The term 'interLATA service' means telecommunications
between a point located in a local access and transport area
and a point located outside such area." 47 U.S.C.
§ 153(21)(Supp. III 1997). "The term 'local access and
transport area' or 'LATA' means a contiguous geographic area—
          (A) established before February 8, 1996, by a
     Bell operating company such that no exchange area
     includes points within more than 1 metropolitan
     statistical area, consolidated metropolitan
     statistical area, or State, except as expressly
     permitted under the AT&T Consent Decree; or

                                 2
"proposes to offer services to the public within Virginia over

its own facilities and through resale of services provided by

other carriers."    VYVX requested authority to construct,

acquire, extend, and operate equipment and facilities to be

used in the operation of an intrastate telecommunications

public facility.

     VYVX also stated in its application that it would own the

facilities to be constructed in Virginia.   VYVX sought

"authority to offer a full range of intrastate interLATA

telecommunications services to the public on a statewide basis

within the Commonwealth of Virginia as a non-dominant

interexchange carrier."   VYVX further stated in its

application that:   "[VYVX] will build and operate its fiber

optic telecommunications facilities in Virginia as a public

service company.    [VYVX] plans to complete construction of the

facilities in Virginia by December 31, 1997, and intends to

begin construction as soon as it has obtained all necessary

governmental authorizations."   Finally, VYVX stated that

Williams "and [VYVX] have authorization to construct

interstate telecommunications facilities and to provide

interstate services pursuant to rules adopted by the Federal



          (B) established or modified by a Bell operating
     company after February 8, 1996, and approved by the
     [Federal Communications] Commission." 47 U.S.C.
     § 153(25)(Supp. III 1997).

                                 3
Communications Commission.   47 C.F.R. § 63.07 (1996).   [VYVX]

is filing the instant application to ensure that it has the

ability to offer intrastate interLATA services as well."

     VYVX attached a copy of its amended and restated articles

of incorporation to its application.   Article II of the

amended and restated articles of incorporation states:     "The

purpose for which the Corporation is formed is to construct,

own and operate telecommunications facilities, including fiber

optic lines, for the purposes of providing audio, video and

data telecommunications transmission services and other

telephone services as a public service corporation, public

utility and communications common carrier."

     As required by an order issued by the Commission, VYVX

caused notice of its application to be published in newspapers

having general circulation throughout Virginia and mailed

notices to certain public officials.   On January 14, 1998, the

Commission issued an order granting VYVX authority to provide

intrastate, interexchange services subject to certain

restrictions contained in the Commission's rules governing the

certification of interexchange carriers and certain applicable

statutes.   The Commission's January 14, 1998 order stated that

the Commission would consider separately VYVX's requested

certification to construct its proposed facilities.




                                4
        The Commission directed VYVX to publish notice of its

request to construct facilities throughout the localities in

which it proposed to construct those facilities.     VYVX

requested an amendment to its application to reflect its

desire to construct a lateral fiber optic telecommunications

line.    The Commission granted VYVX's request and ordered that

the public notice include the areas affected by the

construction of the additional lateral line.

        In response to the notice, the Commission received

several comments and complaints.      Certain landowners

complained to the Commission because VYVX and its agent,

Coates Field Service, Inc., had threatened the property

owners.    VYVX and its agents told the property owners that

VYVX would condemn their properties if the property owners did

not consent to give VYVX easements necessary for the

installation of its cable fiber.      For example, Mark E. Decot,

a property owner whose land was affected by the installation

of the cable, testified at a hearing before the Commission

that VYVX threatened to condemn a portion of his land if he

refused to convey an easement to it.     Diana Orr, who was

employed with Coates Field Service, told Decot that if he did

not sign a document that she had mailed to him, then his

property would be "condemned and . . . taken anyway, so what

[he] should do is go ahead and sign it and get as much money


                                  5
as [he] can get out of it right now."   VYVX filed a

condemnation proceeding against Decot in the Circuit Court of

Orange County.   Decot eventually signed a document with VYVX

which gave VYVX the requested easement.

     John and Janete Cassell also testified that they were

told by VYVX's agents that VYVX would condemn their property

if they failed to convey a requested easement.    A stipulation

of undisputed facts reveals that VYVX had filed four

condemnation proceedings in various circuit courts to acquire

easements of right-of-way from property owners.

     David R. Clossin, an employee of Coates Field Service,

testified that Coates entered into a contract with VYVX to

assist it with the acquisition of easements in Virginia.

Clossin testified:   "I work for Coates Field Service, with a

business card that we represent VYVX of Virginia."

     In September 1997, the Commission, which was of the

opinion "that the allegations raised by the complaints

constitute 'substantive objections' to [VYVX's application],"

ordered VYVX to respond to the landowners' complaints and

directed that VYVX "clarify what certification(s) it seeks

from the Commission and explain whether . . . since its

application seeks authority to construct, acquire, extend, or

operate equipment or facilities for use in public utility

service, certification pursuant to [Code] § 56-265.2 . . .


                                6
should be required."   The Commission ordered that VYVX

"demonstrate why it should not be ordered to cease

condemnation activities until it receives all necessary

certificates of public convenience and necessity from the

Commission."

     VYVX responded to the Commission's order and stated that

VYVX proposed to install a fiber optic cable system in

Virginia and asserted that it did not need any certification

before exercising the right of eminent domain.   Continuing,

VYVX requested that the Commission issue a certificate of

public convenience and necessity under Code § 56-265.2 which

would authorize VYVX to provide intrastate interLATA

telecommunications services as a non-dominant interexchange

carrier.

     On October 17, 1997, the Commission staff asked the

Commission to order VYVX to cease its condemnation activities

because, as of that date, VYVX had filed four condemnation

actions to obtain easements for the installation of its fiber

optic cable, and those proceedings were pending in various

circuit courts.   On October 21, 1997, VYVX informed the

Commission that VYVX would not initiate any further

condemnation proceedings until the Commission had acted upon

VYVX's application.    Unbeknownst to the Commission and its

staff, VYVX and its parent corporation, Williams, were


                                 7
constructing the proposed cable system that was the subject of

VYVX's application.

     The Commission, in an order dated November 25, 1997, held

that "VYVX is not yet 'lawfully authorized to operate'

anywhere in the Commonwealth and . . . its proposed

construction is not an ordinary extension or improvement of

its facilities, and therefore [VYVX] requires certification,"

pursuant to Code § 56-265.2.   The Commission held that VYVX

did not have the right to exercise the power of eminent domain

and directed VYVX to "cease acquisition of property or rights

therein, by exercise of, or by implying its right to exercise,

eminent domain authority, until such time as the Commission

has acted upon its application."

     On February 9 and 11, 1998, contractors who were

installing the optic fiber cable system severed telephone

cable owned by Bell-Atlantic Corporation.    Bell-Atlantic

reported these incidents to the Commission which learned, for

the first time, that construction had already begun on the

facilities that were the subject of the certification

proceeding.   The Commission staff filed "a motion for a rule

to show cause and a temporary injunction."

     VYVX responded to the motion and acknowledged that

construction of the cable facilities had begun, but asserted

that Williams, and not VYVX, was constructing the facilities.


                                8
Continuing, VYVX claimed that Williams was constructing the

facilities pursuant to its federal authority and that the

facilities would be used for interstate service.   VYVX stated

in its response that it would use the system to provide

intrastate interLATA telecommunications.

     The Commission conducted a hearing on the motion for a

rule to show cause and also considered VYVX's request for

construction certification pursuant to Code § 56-265.2.   The

Commission held VYVX had violated the Commission's orders of

November 25, 1997 and January 14, 1998 because VYVX had

assisted its parent corporation, Williams, with the

construction of facilities that were the subject of the

application.

     The Commission entered an order dated October 8, 1998

holding, among other things, that VYVX had essentially

completed construction of the facilities for which such

authority was sought and that such construction was

implemented "knowingly and by design of [VYVX] and, as

admitted in the testimony of its own witnesses . . . such

construction had begun as early as September 1997" and that

the requested construction "is now an accomplished fact."

     The Commission implicitly found that VYVX had made

certain misrepresentations and misstatements in its

application, but the Commission explicitly concluded that


                               9
those misrepresentations and misstatements did not relate to

VYVX's ability to provide interexchange services.    Rather, the

misrepresentations and misstatements "apply to that part of

the application in which VYVX requests a certificate to

construct facilities."   The Commission denied VYVX's

certificate of public convenience and necessity to construct

telecommunications facilities and imposed a fine in the sum of

$197,000 pursuant to Code § 12.1-33.    The Commission suspended

$175,000 of the fine, conditioned upon VYVX's compliance with

orders or rules of the Commission or any statute of the

Commonwealth for a period of five years and the payment of

court costs.   VYVX appeals.

                               III.

     VYVX contends that the Commission's order constitutes an

unconstitutional burden on interstate commerce.    VYVX argues

that Williams has authority to construct facilities for

interstate telecommunications services and that the fiber

optic cable system that was constructed will be used for

interstate commerce.   Continuing, VYVX says that the

"Commission ordered a fine as a penalty for construction of

facilities under federal authority to be used in interstate

commerce.   This it cannot do."    We disagree with VYVX.

     The Commerce Clause in the United States Constitution

grants Congress the power "[t]o regulate commerce . . . among


                                  10
the several states."   U.S. Const. art. I, § 8, cl. 3.   Even

though the Commerce Clause speaks in terms of powers bestowed

upon Congress, the Supreme Court has held that the Commerce

Clause limits the power of the States "to erect barriers

against interstate trade."   Lewis v. BT Investment Managers,

Inc., 447 U.S. 27, 35 (1980).

     Discussing the scope of the Commerce Clause, the Supreme

Court has stated:

     "This limitation upon state power, of course, is by
     no means absolute. In the absence of conflicting
     federal legislation, the States retain authority
     under their general police powers to regulate
     matters of 'legitimate local concern,' even though
     interstate commerce may be affected. See e.g.,
     Raymond Motor Transportation, Inc. v. Rice, 434 U.S.
     429, 440 (1978); Great A&P Tea Co. v. Cottrell, 424
     U.S. 366, 371 (1976). Where such legitimate local
     interests are implicated, defining the appropriate
     scope for state regulation is often a matter of
     'delicate adjustment.' Ibid., quoting H.P. Hood &
     Sons, Inc. v. Du Mond, 336 U.S. [525,] 553 [1949]
     (Black, J., dissenting). Yet even in regulating to
     protect local interests, the States generally must
     act in a manner consistent with the 'ultimate . . .
     principle that one state in its dealings with
     another may not place itself in a position of
     economic isolation.' Baldwin v. G.A.F. Seelig,
     Inc., 294 U.S. 511, 527 (1935). However important
     the state interest at hand, 'it may not be
     accomplished by discriminating against articles of
     commerce coming from outside the State unless there
     is some reason, apart from their origin, to treat
     them differently.' Philadelphia v. New Jersey, 437
     U.S. [617] 626-27 [1978]."




                                11
Lewis, 447 U.S. at 36.     Accord Maine v. Taylor, 477 U.S. 131,

137-38 (1986); Kassel v. Consolidated Freightways Corp., 450

U.S. 662, 669-70 (1981).

     Applying these principles, we hold that the Commission's

order which imposed a fine upon VYVX does not contravene the

limitations imposed upon the States by the Commerce Clause.

VYVX filed an application to operate intrastate facilities. 2

The Commission imposed a fine upon VYVX because VYVX

participated in the construction of the facilities even though

the Commission had entered orders informing VYVX that

certification was necessary before such construction could

commence.   The Commission's order is directed solely to

violations of VYVX, which is incorporated in Virginia, and

which applied for and was granted a certificate to provide

intrastate interexchange service within Virginia.    The fine


     2
       VYVX states that it "is immaterial who built the
facilities because [VYVX] and Williams have federal authority
to construct facilities for interstate telecommunications
service, and the Commission cannot regulate such service
. . . ." VYVX's contention is without merit. VYVX repeatedly
stated before the Commission that it would construct, operate,
and own the facilities that would provide intrastate service
within Virginia. We will not permit VYVX to ignore its
representations before the Commission and assert a contrary
position in this Court. Additionally, the record reveals that
VYVX participated in the construction of the cable network.
Decot testified that VYVX personnel participated in the
construction activities that occurred on his property.
Additionally, Clossin, VYVX's agent, directed construction and
was responsible for resolving disagreements with local
property owners.

                                 12
that the Commission imposed does not affect Williams, a

separate corporate entity.   Williams was not before the

Commission, and the Commission did not impose a fine upon

Williams.   The Commission's order simply does not restrict

Williams' use of its interstate facilities. 3

                               IV.

                               A.

     VYVX argues that the Commission's November 25, 1997 order

is unenforceable.   This order, among other things, directed

that VYVX cease acquisition of real property or rights therein

by the exercise of eminent domain authority until the


     3
       We also note that the Telecommunications Act of 1996,
from which Williams derives the power to construct its
interstate telecommunications cable, recognizes the authority
of the States to manage public rights-of-way. The Act
specifically states:
     "(b) State regulatory authority
          "Nothing in this section shall affect the
     ability of a State to impose, on a competitively
     neutral basis and consistent with section 254 of
     this section, requirements necessary to preserve and
     advance universal service, protect the public safety
     and welfare, ensure the continued quality of
     telecommunications services, and safeguard the
     rights of consumers.
     "(c) State and local government authority
          "Nothing in this section affects the authority
     of a State or local government to manage the public
     rights-of-way or to require fair and reasonable
     compensation from telecommunications providers, on a
     competitively neutral and nondiscriminatory basis,
     for use of public rights-of-way on a
     nondiscriminatory basis, if the compensation
     required is publicly disclosed by such government."
47 U.S.C. § 253 (1999).

                               13
Commission acted upon VYVX's application for certificates of

public convenience and necessity.   VYVX contends that the

Commission did not hold a hearing before the entry of that

order and, thus, the order is void.   Continuing, VYVX

challenges the legality of the Commission's subsequent order,

dated October 8, 1998, which imposed a fine upon VYVX because,

among other reasons, VYVX failed to comply with the November

25, 1997 order.   VYVX also asserts that the November 25, 1997

order violated Article IX, § 3, of the Constitution of

Virginia and Code § 12.1-28.

     At the outset, we will not consider VYVX's constitutional

argument because it was not raised before the Commission.

Rule 5:25.

     Code § 12.1-28 states in relevant part:

          "Before the Commission shall enter any finding,
     order, or judgment against any person, it shall
     afford such person reasonable notice of the time and
     place at which he shall be afforded an opportunity
     to introduce evidence and be heard."

     Our review of the record reveals that the Commission

complied with this statute because the Commission accorded

VYVX numerous opportunities to be heard.   As we have already

stated, the Commission entered an order directing VYVX to

respond to complaints that property owners had filed.    The

Commission requested that VYVX declare the legal basis upon

which it relied to acquire property by use of eminent domain.


                               14
VYVX's response did not necessitate the taking of evidence,

but, rather, required that VYVX set forth the legal basis for

its assertion that it could acquire easements using the power

of eminent domain.

       VYVX did not deny before the Commission, and does not

deny here, that VYVX represented to property owners that it

had the power of eminent domain.     VYVX admits that it

initiated condemnation proceedings.    In VYVX's response to the

Commission's order, VYVX submitted a written explanation of

its purported source of authority to exercise the power of

eminent domain.

       VYVX did not request an opportunity to present testimony

before the Commission, and such testimony would have been

unnecessary because the Commission's decision was not

predicated upon factual matters, but, rather, on principles of

law.   And, the Commission afforded VYVX a reasonable

opportunity to be heard on the legal questions that were the

subject of the Commission's order.

       Furthermore, the Commission did not impose the fine upon

VYVX until the Commission issued its October 1998 order.

Before the entry of that order, VYVX presented evidence,

written depositions, legal memoranda, and oral argument to the

Commission.

                                B.


                                15
        We also hold that there is no merit in VYVX's contention

that the Commission violated Rule 5:6 of the Commission's

Rules of Practice and Procedure.      That Rule states in relevant

part:

        "Upon petition of any aggrieved party, or upon its
        own motion if necessary for full relief, the
        Commission will convert any unresolved valid
        complaint to a formal proceeding by the issuance of
        a rule to show cause, or by an appropriate order
        setting a formal hearing, upon at least ten (10)
        days notice to the parties, or as shall be required
        by statute."

This Rule is not implicated here because VYVX did not file a

petition requesting that the Commission convert the complaints

to a formal proceeding.

                                 C.

        Code § 12.1-33 states in relevant part:

        "Any person failing or refusing to obey any order or
        any temporary or permanent injunction of the
        Commission may be fined by the Commission such sum,
        not exceeding $1,000, as the Commission may deem
        proper; and each day's continuance of such failure
        or refusal shall be a separate offense."

VYVX contends that the November 25, 1997 order commanded only

that it refrain from exercising and asserting its power of

eminent domain, and that VYVX did so.     We disagree.

        The Commission's November 25, 1997 order stated, among

other things, that VYVX must obtain certification from the

Commission before it constructs its facility and operates as a

utility in this Commonwealth.    The Commission, in its October


                                 16
1998 order, concluded that VYVX violated the November 1997

order because it participated in the construction of the

facilities even though it had not acquired the necessary

certification.    The Commission's finding is amply supported by

the facts contained in Section II of this opinion.   And, we

have stated that a finding of the Commission "will not be

disturbed by us 'unless it is contrary to the evidence or

without evidence to support it.'"    Thaxton v. Commonwealth,

211 Va. 38, 43, 175 S.E.2d 264, 268 (1970); Security Bank &

Trust Co. v. Schoolfield Bank & Trust Co., 208 Va. 458, 461,

158 S.E.2d 743, 745 (1968).   Thus, we hold that the Commission

did not err in concluding that VYVX had violated the November

25, 1997 order.

                                V.

                                A.

     VYVX asserts that the Commission did not have

jurisdiction to determine whether a public service company has

the power of eminent domain to acquire easements for

telecommunication facilities.   We disagree with VYVX.

     We have stated that the "Commission has no inherent power

simply because it was created by the Virginia Constitution;

and therefore its jurisdiction must be found either in

constitutional grants or in statutes which do not contravene

that document."    City of Norfolk v. Virginia Electric & Power


                                17
Co., 197 Va. 505, 514, 90 S.E.2d 140, 146 (1955); Appalachian

Power Co. v. John Stewart Walker, Inc., 214 Va. 524, 528, 201

S.E.2d 758, 762 (1974); see also Commonwealth v. Old Dominion

Power Co., 184 Va. 6, 11-12, 34 S.E.2d 364, 366, cert. denied,

326 U.S. 760 (1945); City of Richmond v. Chesapeake & Potomac

Telephone Co., 127 Va. 612, 619, 105 S.E. 127, 129 (1920).

     However, Code § 56-35 states:

     "The Commission shall have the power, and be charged
     with the duty, of supervising, regulating and
     controlling all public service companies doing
     business in this Commonwealth, in all matters
     relating to the performance of their public duties
     and their charges therefor, and of correcting abuses
     therein by such companies."

     Code § 56-35 confers upon the Commission the duty and the

authority to supervise, regulate, and control public service

companies, including VYVX, in all matters relating to the

performance of their duties and requires that the Commission

correct any abuses by public service companies, such as VYVX.

Here, the Commission had jurisdiction to consider whether VYVX

had abused its status as a public service company by

threatening to exercise the power of eminent domain to acquire

easements from property owners even though VYVX had not yet

received its requested certification from the Commission. 4



     4
       We reject VYVX's contention that Code § 56-35 limits the
Commission's authority to the supervision or regulation of
"the 'public duties' of utilities for which they impose

                               18
                               B.

     As we have already stated, the Commission held that VYVX

did not have the power to exercise the right of eminent domain

to acquire easements for its fiber optic lines because it had

not been granted a certificate of public convenience and

necessity.   VYVX contends that public service corporations

have the right to acquire easements for facilities to be used

in serving the public and, therefore, it has the right to

exercise the power of eminent domain to acquire such

easements.   We disagree with VYVX.

     Code § 56-49(2) states in relevant part:

     "A public service corporation which has not been
     allotted territory for public utility service by the
     State Corporation Commission shall acquire lands or
     interests therein by eminent domain as provided in
     this subdivision for electric lines, facilities,
     works or purposes only after it has obtained any
     certificate of public convenience and necessity
     required for such lines, facilities, works or
     purposes under Chapter 10.1 (§ 56-265.1, et seq.) of
     Title 56."

In deciding the meaning of this statute, we consider the plain

language contained therein.   Haislip v. Southern Heritage Ins.

Co., 254 Va. 265, 268, 492 S.E.2d 135, 137 (1997); Abbott v.

Willey, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Barr v.

Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990).


'charges' to the public."   VYVX's interpretation of the


                               19
     The plain language of Code § 56-49(2) does not permit a

public service corporation which has not been allotted

territory for public utility service by the Commission to

exercise the power of eminent domain to acquire land or

interests therein for electric lines, facilities, works, or

purposes until the public service corporation has obtained a

certificate of public convenience and necessity from the

Commission.   Here, VYVX actually filed condemnation

proceedings against landowners to acquire easements even

though it had not obtained a certificate of public convenience

and necessity.

     VYVX contends, however, that Code § 56-49(2) does not

apply to it because VYVX "does not propose to acquire property

for 'electric' facilities."   Apparently, VYVX believes that

the word "electric" which is contained in the phrase "electric

lines, facilities, works, or other purposes" modifies the

words "facilities, works, or other purposes."   VYVX simply

misreads the statute.   A plain reading of the statute

indicates that the word "electric" only modifies the word

"lines" because of the punctuation contained in that sentence.

Even though the General Assembly amended Code § 56-49(2) by

eliminating the word "electric" effective July 1, 1999, such

amendment does not affect our analysis.   The deletion of the


statute is simply contrary to its plain language.

                               20
word "electric" from the statute simply expands the types of

lines that fall within the scope of the statutory regulatory

scheme.

                              C.

     VYVX, relying upon Peck Iron & Metal Co. v. Colonial

Pipeline Co., 206 Va. 711, 146 S.E.2d 169, cert. denied, 385

U.S. 823 (1966), and Kricorian v. Chesapeake & Potomac

Telephone Co., 217 Va. 284, 227 S.E.2d 725 (1976), argues that

it acquired the right to exercise eminent domain by virtue of

its incorporation as a public service company.   We find no

merit in VYVX's contention.

     In Peck Iron & Metal Co., we held that a public service

corporation was not required under Code § 56-265.1(b) of the

Utility Facilities Act to obtain a certificate of public

convenience and necessity before exercising the power of

eminent domain because the public service company was not a

public utility as defined by Code § 56-265.1(b).   Peck Iron &

Metal Co., 206 Va. at 717-18, 146 S.E.2d at 173.   This statute

states in relevant part:

          "'Public utility' means any company which owns
     or operates facilities within the Commonwealth of
     Virginia . . . for the furnishing of telephone
     service."

     Code § 56-265.2 of the Utility Facilities Act states in

relevant part:



                              21
     "A. It shall be unlawful for any public utility to
     construct, enlarge or acquire, by lease or
     otherwise, any facilities for use in public utility
     service, except ordinary extensions or improvements
     in the usual course of business, without first
     having obtained a certificate from the Commission
     that the public convenience and necessity require
     the exercise of such right or privilege. Any
     certificate required by this section shall be issued
     by the Commission only after opportunity for a
     hearing and after due notice to interested parties."

VYVX, unlike the public service corporation in Peck Iron &

Metal Co., is a public utility and, therefore, is subject to

the provisions of Code § 56-265.2 which prohibits a public

utility from performing certain acts without a certificate of

public convenience and necessity issued by the Commission.

     In Kricorian, we held that a public utility was not

required to comply with the provisions of the Utility

Facilities Act by obtaining approval from the Commission

before initiating condemnation proceedings.   The utility in

Kricorian, however, unlike VYVX, exercised the power of

eminent domain to acquire property for "ordinary extensions or

improvements in the usual course of business" which is

expressly permitted by Code § 56-265.2.   Kricorian, 217 Va. at

289, 227 S.E.2d at 729.   VYVX's request for the construction

and extension of facilities does not fall within this

statutory exception.

                               VI.




                               22
     VYVX argues that the Commission erred by denying VYVX's

request for a certificate of public convenience and necessity.

Continuing, VYVX states that the only reason the Commission

gave for denying the requested certificate was that a

certificate would not be meaningful since the initial phase of

construction had been completed.    VYVX also says that this

reason is an erroneous application of Code § 56-265.2, and

that the Commission's order discriminates against VYVX in

favor of other telecommunications companies which construct

such facilities in Virginia.

     We have held that "[t]he Commission is given broad

discretionary authority in determining whether a certificate

of public convenience and necessity will be approved."

Stafford Serv. Corp. v. State Corp. Commission, 220 Va. 559,

562, 260 S.E.2d 226, 228 (1979); Bralley-Willett Tank Lines,

Inc. v. Holtzman Oil Corp., 216 Va. 888, 890-91, 223 S.E.2d

892, 895 (1976).   This Court has also stated that "[w]e cannot

sit as a board of revision to substitute our judgment for that

of the Commission on matters within its province."    Bralley-

Willett Tank Lines, Inc., 216 Va. at 891, 223 S.E.2d at 895;

Atlantic Greyhound Lines of Va., Inc. v. Silver Fox Lines, 204

Va. 360, 363, 131 S.E.2d 284, 286 (1963).

     The Commission, upon consideration of the facts and

circumstances before it, concluded that the issuance of a


                               23
certificate of public convenience and necessity would not be

meaningful because VYVX had participated in the construction

of facilities that were the subject of the application in

violation of the Commission's orders.    Additionally, the

Commission made a specific finding "that the public interest

and convenience do not require the exercise by VYVX of the

rights and privileges under [Code § 56-265.2]" which include

the power to exercise the right of condemnation to construct,

enlarge, or acquire, by lease or otherwise, any facilities for

use in VYVX's public utility service.    We cannot conclude,

based upon the record before us, that the Commission abused

its broad discretion in determining that the issuance of a

certificate would not be in the public interest, particularly

in consideration of VYVX's widespread practice of acquiring

easements with the threat of the power of eminent domain when

it did not possess such power.

     We find no merit in VYVX's contention that the

Commission's order discriminates against it in favor of other

telecommunication companies.   VYVX ignores the fact that it

was denied a certificate of public convenience and necessity

because of its own acts, and not because of favoritism

directed towards other telecommunications companies that

construct facilities in Virginia.     And, the record simply does

not support VYVX's claims of discrimination.


                                 24
                             VII.

     We have examined VYVX's remaining arguments and hold that

such arguments are without merit.   Accordingly, we will affirm

the Commission's order.

                                                       Affirmed.




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