[Cite as Cincinnati SMSA L.P. v. Pub. Util. Comm., 98 Ohio St.3d 282, 2002-Ohio-7235.]




CINCINNATI SMSA LIMITED PARTNERSHIP, A.K.A. AMERITECH, APPELLANT, v.
          PUBLIC UTILITIES COMMISSION OF OHIO ET AL., APPELLEES.
 [Cite as Cincinnati SMSA L.P. v. Pub. Util. Comm., 98 Ohio St.3d 282, 2002-
                                      Ohio-7235.]
Public Utilities Commission — Wholesale cellular telephone service resales —
        Ohio law not preempted by Section 332(c)(3)(A), Title 47, U.S.Code.
  (No. 2001-1158 — Submitted November 13, 2002 — Decided December 30,
                                          2002.)
  APPEAL from the Public Utilities Commission of Ohio, No. 93-1758-RC-CSS.
                                 __________________

FRANCIS E. SWEENEY, SR., J.
        {¶1}    This is an appeal as of right. The appellant is Cincinnati SMSA
Limited Partnership (“Ameritech”).           The appellees are the Public Utilities
Commission of Ohio (“commission”) and intervenor Westside Cellular, Inc.
(“Cellnet”).
        {¶2}    Cellnet is a cellular telephone service reseller.            As such, it
purchases cellular service on a wholesale basis, rebrands the service, and markets
it to the general public on a retail basis. On October 18, 1993, Cellnet filed a
complaint in commission case No. 93-1758-RC-CSS against wholesale cellular
service providers, including Ameritech. The complaint asserted that Ameritech
discriminated against Cellnet. In its January 18, 2001 opinion and order (“the
order”), the commission generally agreed with Cellnet’s assertions and held that
Ameritech, in violation of commission orders and regulations and Ohio statutes,
unlawfully discriminated against Cellnet.
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       {¶3}    This appeal has significant similarities to the appeal in New Par v.
Pub. Util. Comm., 98 Ohio St.3d 277, 2002-Ohio-7245, 781 N.E.2d 1008 (the
New Par appeal). While the appellant here is Ameritech, the appellants in the
New Par appeal were multiple entities. However, the appellants in both appeals
were wholesale cellular telephone service providers and were respondents in the
Cellnet complaint that resulted in the order that is the subject of both appeals.
       {¶4}    In this appeal, Ameritech argues that the order is unlawful because
(1) the commission’s jurisdiction was preempted by federal law; (2) the
commission’s decision was not supported by evidence; (3) the commission should
have sua sponte adjourned the evidentiary hearing and ordered Ameritech to
produce evidence of its internal rate once it had become clear that Ameritech had
failed to produce evidence of any internal rate; and (4) the commission based part
of its decision on regulations that Ameritech claims are invalid because they were
not properly promulgated.
       {¶5}    In the New Par appeal, we considered the first, second, and fourth
issues and disposed of them in favor of the commission, finding no reversible
error. As to the first issue, that of federal preemption, Ameritech in this appeal
makes all of the arguments made by New Par. It argues that the commission’s
order under Ohio law was preempted by Section 332(c)(3)(A), Title 47,
U.S.Code, because the commission engaged in rate-setting when it determined
Ameritech’s internal wholesale rate to be zero. However, Ameritech’s argument
is based on a fallacy; to the extent that Ameritech’s internal wholesale rate was set
at zero, it was so set by Ameritech, not by the commission. The commission
merely determined that the internal wholesale rate was zero based on
examinations of Ameritech’s accounting records (or lack thereof) and
consideration of testimony of Ameritech witnesses. This determination did not
constitute preempted rate-setting by the commission.           Therefore, we reject
Ameritech’s second additional preemption argument.




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                                 January Term, 2002




          {¶6}   Having rejected Ameritech’s additional argument for preemption,
we hereby adopt the analysis and legal conclusions set forth in our opinion in the
New Par appeal to affirm the commission’s order with respect to the following
issues as set forth above: (1) federal preemption, (2) conclusions supported by
sufficient probative evidence, and (3) validly established regulations.
          {¶7}   Remaining is the third issue of asserted error by Ameritech, that
the commission should have sua sponte adjourned the evidentiary hearing and
ordered Ameritech to produce evidence of its internal rate once it had become
clear that Ameritech had failed to produce any evidence of its internal rate. Not
only is Ameritech’s third asserted error counterintuitive, there is no legal support
for it. We reject this argument as we have rejected Ameritech’s other assertions
of error.
          {¶8}   Therefore, we affirm the order of the commission.
                                                                     Order affirmed.
          MOYER, C.J., DOUGLAS, FARMER, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
          COOK, J., concurs in judgment only.
          SHEILA G. FARMER, J., of the Fifth Appellate District, sitting for RESNICK,
J.
                                __________________

          Jon F. Kelly and Calfee, Halter & Griswold, L.L.P., Mark I. Wallach,
Kevin M. Sullivan, James F. Lang and Seamus C. Duffy, for appellant.
          Betty D. Montgomery, Attorney General, Steven T. Nourse, Duane M.
Luckey, Kimberly A. Danosi and Thomas W. McNamee, Assistant Attorneys
General, for appellee Public Utilities Commission of Ohio.




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       Hahn, Loeser & Parks, L.L.P., Robert J. Fogarty, Randy J. Hart, Mark D.
Griffin; Tricarichi & Carnes and Carla M. Tricarichi, for intervening appellee,
Westside Cellular, Inc.
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