Ex Parte Deprivation of Telephone Service to Alleged Gamblers - Police Power vs. Constitution
The question is still much in a state of flux as to whether or not such regulations as Ohio Public Utilities Commission, Order No. 22,305,and actions taken thereunder, constitute an unconstitutional denial of due process. The large majority of cases, many of which have been decided by public utilities commissions, however, uphold the right of the telephone company to discontinue service summarily at the request of a law enforcement agency without the necessity of any further proof of illegal use of the equipment. With respect to the burden of proof as regards the legality or illegality of use and the incidence of the burden on the subscriber, telephone company, or law enforcement agency, there appears to be a considerable difference of opinion, clouded by dicta and not susceptible of any clearcut analysis. It can be said with certainty that the telephone companies are free to refuse to contract if they have reason to believe that an applicant will use the service for illegal means, or to further illegal pursuits. Once service has been established,- that is, once the burden of proving that he will use the service properly has been met by the applicant,-the decisions diverge. There is no question that the telephone company must have more than a mere suspicion of illegal usage to justify its discontinuance of service. But where it is the law enforcement agency which has the "mere suspicion" it appears that the subscriber may lose his telephone before he even learns of it, and only afterward may require a hearing to recover it.
Jules L. Kaufman, Ex Parte Deprivation of Telephone Service to Alleged Gamblers - Police Power vs. Constitution, 2 Clev.-Marshall L. Rev. 9 (1953)
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