(Ga. L. 1907, p. 72, § 6; Civil Code 1910, § 2663; Ga. L. 1922, p. 143, §§ 3, 5; Code 1933, § 93-307; Ga. L. 1967, p. 650, § 1; Ga. L. 1989, p. 692, § 1; Ga. L. 1990, p. 856, § 2; Ga. L. 1992, p. 1647, § 1; Ga. L. 2012, p. 847, § 3/HB 1115.)
The 2012 amendment, effective July 1, 2012, deleted "and telegraph" following "telephone" near the middle of subsection (a).
Cross references.- Authority of commission to promulgate safety rules and regulations for motor vehicles within its jurisdiction, § 40-8-2.
Authority of commission to contract with state agencies to use state employees, § 45-10-20.
Jurisdiction of commission with regard to projects of Municipal Electric Authority of Georgia, § 46-3-152.
Rapid Rail Passenger Service, Chapter 8A, Title 46.
Code Commission notes.- Pursuant to Code section 28-9-5, in 1989, a comma was inserted following "promulgated by" in subsection (h).
Law reviews.- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) was not void as in opposition to U.S. Const., Art. I, Sec. 9, Cl. 3 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of any ex post facto law, or U.S. Const., Art. I, Sec. 10, Cl. 1 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of laws impairing the obligation of contracts, or U.S. Const., Amend. 5 or Ga. Const. 1976, Art. I, Sec. III, Para. I (Ga. Const. 1983, Art. I, Sec. III, Para. I, II; Art. III, Sec. VI, Para. II), prohibiting the taking of property without due process of law, or Ga. Const. 1976, Art. VII, Sec. I, Para. I (Ga. Const. 1983, Art. VII, Sec. I, Para. I), declaring taxation a sovereign right. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841, 83 S.E. 946, 1916E L.R.A. 358 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, 9 A.L.R. 1420 (1919).
Business conducted by electric light and power companies public in nature.
- Public nature of business conducted by electric light and power companies was indicated by former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) placing them under the general supervision of the commission. Central Ga. Power Co. v. Ham, 139 Ga. 569, 77 S.E. 396 (1913).
Construction of word "establish."
- A reasonable construction of the word "establish" used in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) was that it is defined to include the extension of existing service, and to bring into being new service and facilities in connection therewith. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).
Injunction available against commission.
- Injunction is an available remedy to restrain the Georgia Public Service Commission from acts or threatened acts which are beyond the scope of its jurisdiction and authority. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).
Utility has no authority to select customers or discriminate.
- A corporation organized to generate and supply hydroelectric power to the public, and having a monopoly of such power in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) where it operated, had no authority to select customers or discriminate against the members of a class it had elected to serve. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).
Right of utilities to contract.
- Public utilities have the right to enter into contracts between themselves, or with others, free from control or supervision of the state, so long as such contracts are not unconscionable or oppressive and do not impair the obligation of the utility to discharge its public duties. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).
Contract provisions prepared by utility to be construed in customer's favor.
- Where provisions of contract are prepared by a utility company the provisions must be strictly construed in favor of the customer. State Farm Fire & Cas. Co. v. Southern Bell Tel. & Tel. Co., 245 Ga. 5, 262 S.E.2d 895 (1980).
Gas utility converting gas into total energy service subject to rate regulation.
- Public utility selling only natural gas cannot avoid regulation of its rates by converting gas into total energy service, which includes electricity, a utility also subject to regulation. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).
Contract to furnish total energy system held not private nonutility contract.
- Contract between public utility and landlord to furnish total energy system (hot and cold water and electricity included) is not a private nonutility contract and was therefore subject to regulation by the Public Service Commission. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).
Utility may require separate gas meters.
- Rule and regulation of gas company, approved by the Public Service Commission, requiring a separate gas meter to be installed for each housekeeping apartment, was not, under the allegations of the petition, arbitrary, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).
Cited in Ezell v. City of Atlanta, 13 Ga. App. 95, 78 S.E. 850 (1913); Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970); City of Doraville v. Southern Ry., 227 Ga. 504, 181 S.E.2d 346 (1971); Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975); Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975); Bryan v. Georgia Pub. Serv. Comm'n, 238 Ga. 572, 234 S.E.2d 784 (1977); City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).
Powers of Commission
For power of Public Service Commission to regulate generally, see Railroad Comm'n v. Louisville & N.R.R., 140 Ga. 817, 80 S.E. 327, 1915E L.R.A. 902, 1915A Ann. Cas. 1018 (1913).
Public Service Commission has only such powers as are granted to it by statute. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).
Commission may require railroads to provide equal freight service.
- Public Service Commission has power to prevent unjust discriminations and to require railroad companies in the conduct of their intrastate business to afford equal facilities in the transportation and delivery of freight. Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157, 127 S.E.2d 12 (1962).
Commission may regulate handling of baggage.
- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) conferred the power upon the Public Service Commission to issue an order requiring a terminal company to receive and check to its destination certain properly identified baggage. Atlanta Term. Co. v. Georgia Pub. Serv. Comm'n, 163 Ga. 897, 137 S.E. 556 (1927).
Commission not authorized to grant reparations or compensatory damages.
- Public Service Commission is not authorized to grant reparations or compensatory damages, either by reason of a public utility collecting unreasonable rates, or by reason of the violation of any rule or regulation of the commission. The commission does not have the power to impose forfeitures or to provide for pecuniary recoveries. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).
Commission can not require utility to buy, merge with, or sell power to another utility.
- Public Service Commission is not authorized to require electric public utility to buy or merge against its will with a neighboring electric public utility, or to sell power to such other public utility where it has never undertaken as such public utility to provide such service. Public regulation must not supplant private management. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).
Commission not authorized to determine whether street railroad company may discontinue service.
- Under former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) the commission had no express or implied power to determine whether a chartered street railroad company may entirely discontinue or abandon service upon a line, or part thereof, voluntarily constructed by it and devoted to the public use. Railroad Comm'n v. Macon Ry. & Light Co., 151 Ga. 256, 106 S.E. 282 (1921).
Limitation of damages for interrupted telephone service proper.
- Since the fixing of utility rates is no longer a matter of private contract, but is charged with a public interest, and it is to the public interest to have uninterrupted service at a reasonable price, it necessarily follows that a reasonable limitation of liability for damages for interrupted telephone service may be considered as a part of the telephone rate-making function. Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga. App. 798, 204 S.E.2d 457 (1974).
Requiring extension of power lines beyond utility's commitment unconstitutional.
- Requiring extension of existing power lines beyond scope of carrier's commitment to public service is an unconstitutional taking of property. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).
Commission may investigate contracts impairing utilities public duties.
- Commission is authorized to investigate possibility that a contract impairs obligation of a utility to discharge its public duties. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).
Commission not to issue special order without notice and hearing.
- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) contemplated that notice and an opportunity of a hearing be given and that provision may be made for such notice either by statute or rule of the commission. That section was to be construed to mean that the commission shall not issue a special order in a particular case, directed to a person or corporation, without first giving notice and an opportunity for hearing to the person or corporation so to be affected thereby. Wadley S. Ry. v. State, 137 Ga. 497, 73 S.E. 741 (1912), aff'd, 235 U.S. 651, 35 S. Ct. 214, 59 L. Ed. 405 (1914); City of Atlanta v. Georgia Ry. & Power Co., 149 Ga. 411, 100 S.E. 442 (1919).
Courts to investigate only unreasonable, arbitrary, or confiscatory commission orders.
- Courts should not interfere with valid order of Public Service Commission unless it is clearly shown that the order is unreasonable, arbitrary, or confiscatory; and courts have no power to substitute their judgment for that of the commission. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 709, 186 S.E. 839 (1936).
Commission has no authority to adjudicate contractual disputes between local exchange carriers.- The statute does not grant authority to the Georgia State Public Commission to adjudicate contractual disputes between local exchange carrier. BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 278 F.3d 1223 (11th Cir. 2002), vacated, 297 F.3d 1276 (11th Cir. 2002).
Commission has authority under federal law to interpret and enforce interconnection agreements and its determination is subject to review in federal court. BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 317 F.3d 1270 (11th Cir. 2003).
Power to regulate construction belongs to Commission.
- The regulation of the construction of electric power substations by municipalities was preempted based on the authority given to the Public Service Commission under O.C.G.A. § 46-2-20. City of Buford v. Ga. Power Co., 276 Ga. 590, 581 S.E.2d 16 (2003).
While the Georgia Public Service Commission (PSC) had the authority to regulate the placement of electrical substations, no requirement existed that every complex construction project be subject to zoning-like restrictions as an agency was not required to exercise the agency's zoning power under O.C.G.A. § 36-66-2(a); the broad statutory delegations of authority to the PSC did not specifically mention siting and did not provide sufficient objective standards to control the PSC's discretion so a trial court improperly directed the PSC to consider the propriety of a power company's construction of a substation and apply specific standards to the case. Ga. PSC v. Turnage, 284 Ga. 610, 669 S.E.2d 138 (2008).
Rate-making
Public Service Commission has power to regulate rates and practices of public utilities. Gas Light Co. v. Georgia Power Co., 440 F.2d 1135 (5th Cir. 1971), cert. denied, 404 U.S. 1062, 92 S. Ct. 732, 30 L. Ed. 2d 750 (1972).
Commission may fix different rates for classes of customers.
- Since the Public Service Commission has by statute authority to fix just and reasonable gas rates to be paid by consumers, it has the power to make classifications which are reasonable, and to fix a different rate for each class of consumers; and where such rates are attacked in the courts, there is a presumption that they are valid, and the burden is on the attacking party to show that the same are invalid in that they are unjust, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).
Matters to be considered in rate-making.
- What is just and reasonable to be charged, what is actuarially sound, what limitations of liability are necessary to reach this result, are matters which need to be taken into account in the determination of public utility rates, just as there are proper actuarial considerations in fixing insurance premiums. Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga. App. 798, 204 S.E.2d 457 (1974).
Courts have no power to make rates.- Making and controlling utility rates is a legislative function delegated to a quasi-legislative body and the courts have no power to control and make such rates. DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F. Supp. 498 (N.D. Ga. 1972), aff'd, 478 F.2d 700 (5th Cir. 1973).
Administrative remedies must be exhausted before court may exercise jurisdiction.
- Where plaintiff fails to utilize the administrative remedies available for investigations and hearings (see O.C.G.A. Art. 3, Ch. 2, T. 46), a court lacked jurisdiction to determine the reasonableness of a public utility's rate structure. Norman v. United Cities Gas Co., 231 Ga. 788, 204 S.E.2d 127 (1974).
Court lacked jurisdiction to hear utility company's appeal from an interim order.
- Trial court erred by affirming a decision of the Georgia Public Service Commission (PSC) in a ratemaking appeal filed by a gas distribution company and by denying the PSC's motion to dismiss the company's appeal; the trial court lacked jurisdiction to hear the company's petition for judicial review since one order appealed from was an interim order, and not a final order, and a voice note appealed from was not even a decision subject to review. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).
OPINIONS OF THE ATTORNEY GENERALANALYSIS
General Consideration
Grant of right to render utility service predicated on meeting public need.
- The reason and purpose for granting a right or authority to render a utility service is to meet a public need for service; if the utility holding such grant fails to serve, the grant should not survive. 1971 Op. Att'y Gen. No. 71-144.
Meaning of terms within section prohibiting political contributions by utilities.
- Section21-5-30 prohibited political campaign contributions on behalf of public utility corporations regulated by the Public Service Commission; "public utility" was a business organization which regularly supplied the public with some commodity or service; "regulated" was defined in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20). 1976 Op. Att'y Gen. No. 76-53.
Utilities within scope of section prohibiting political contributions by utilities.
- Those public utility corporations which are within the ambit of Public Service Commission's supervision under former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) or other laws were also within the scope of § 21-5-30. 1976 Op. Att'y Gen. No. 76-53.
Property owner to be compensated where utility service interrupted by condemnation.- When a taking of property by condemnation interrupts utility service, the property owner has a right to this service, and the utility company is required to furnish the service; this is a right which cannot be taken without just compensation being paid; therefore, utility service must be maintained, or the property owner compensated, in case the service is interrupted by condemnation. 1967 Op. Att'y Gen. No. 67-69.
Liability of condemning authority for damages.- Where market value of property is adversely affected by interruption of utility service, condemning authority is liable for damages. 1967 Op. Att'y Gen. No. 67-69.
Powers of Commission
Restrictions on commission's jurisdiction.
- Jurisdiction of Public Service Commission was restricted to those electric and gas companies which serve the public, under former Code 1933, §§ 93-304 and 93-307 (see O.C.G.A § 46-2-20 and46-2-21). 1972 Op. Att'y Gen. No. 72-84.
Commission has power to regulate telegram charges.- The Public Service Commission has not only general supervisory powers over business organizations which are chartered as telegraph companies under the laws of the State of Georgia, but also express authority to regulate the charges for telegraph messages. 1976 Op. Att'y Gen. No. 76-79.
Commission may require telephone companies to indicate fact that subscriber using listening equipment.- The Public Service Commission has the authority to require, by appropriate regulation, telephone companies under its jurisdiction to accurately indicate in a reasonable manner, by reference in their telephone directories, the fact that a subscriber is utilizing telephone service observing equipment and this requirement is enforceable even where the subscriber happens to be the United State Internal Revenue Service. 1974 Op. Att'y Gen. No. 74-69.
Where commission lacks jurisdiction.- Commission has no jurisdiction over natural gas facilities owned and operated by and within county or municipality. 1967 Op. Att'y Gen. No. 67-291.
Commission has no jurisdiction over rates charged by electric power company for steam generated as by-product of the manufacture of electricity. 1976 Att'y Gen. No. 76-91.
Commission has no jurisdiction over intrastate transportation rates of railroads and common and contract motor carriers on movements of government-owned property for account of United States Armed Forces. 1958-59 Op. Att'y Gen. p. 304.
Commission has no jurisdiction over resale of utility services by landlord to the landlord's tenants who object to the specific charges being made by their landlord for the furnishing of utility services. 1971 Op. Att'y Gen. No. 71-81.
Commission does not have authority over private carriers.
- Private carriers are not included within the purview of the commission's general supervision and are not subject to the prohibition against political contributions set forth in O.C.G.A. § 21-5-30(f). 1990 Op. Att'y Gen. No. 90-32.
Commission may not require railroad not presently providing passenger service to begin doing so.- Commission does not have authority to require a railroad not presently providing passenger service to commence passenger service if the railroad does not desire to do so. If railroad has voluntarily undertaken to provide passenger service to the citizens of this state the commission would have the authority to require the railroad to maintain such public service and facilities as may be reasonable and just. However, the commission cannot require the railroad to operate at a loss. 1980 Op. Att'y Gen. No. 80-36.
Commission may not regulate constructional details within railroad yards.- Public Service Commission is without authority to regulate constructional details as to spacing of railroad tracks within railroad yards. 1952-53 Op. Att'y Gen. p. 496.
Commission may not regulate railroad safety regulations not affecting public.- Commission is not concerned with internal affairs of railroads and disputes between the railroads and their employees concerning safety regulations which do not in any way affect the public. 1972 Op. Att'y Gen. No. 72-133.
Federal preemption of safety regulations of railroads engaged in interstate commerce.- As to railroads which are in interstate commerce, commission is preempted from imposing any safety regulations concerning any subject over which the federal government has an existing regulation. 1980 Op. Att'y Gen. No. 80-36.
Commission revocation of nonuse of certificate granted to telephone company.- Public Service Commission can revoke for nonuse a certificate of public convenience and necessity granted to a telephone company after hearing all facts of a particular case. 1971 Op. Att'y Gen. No. 71-144.
Regulation of cellular radio telecommunication services.- The Georgia Public Service Commission does not have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a radio utility, but may have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a telephone utility. 1983 Op. Att'y Gen. No. 83-65.
RESEARCH REFERENCES9 Am. Jur. Pleading and Practice Forms, Electricity, Gas, and Steam, § 1.
ALR.
- Jurisdiction of Public Service Commission over carriers transporting by motor trucks or buses, 1 A.L.R. 1460; 9 A.L.R. 1011; 51 A.L.R. 820; 103 A.L.R. 268.
Federal control of public utilities, 14 A.L.R. 234; 19 A.L.R. 678; 52 A.L.R. 296.
What telephone companies are within public utilities acts, 21 A.L.R. 1162; 132 A.L.R. 1495.
Power of Public Service Commission to require carrier to furnish cars of special type, 23 A.L.R. 411.
Special services or facilities afforded by shipper as a factor in carrier's rates, 25 A.L.R. 191.
Power to require railroads or street railways to permit use of tracks in street by other companies, 28 A.L.R. 969.
Power of Public Service Commission to require railroad or street railway to extend its line or build new line to new territory, 30 A.L.R. 73.
Power of Public Service Commission with respect to regulation of street railways, 39 A.L.R. 1517.
Street easements as a factor in fixing a rate base for a street railway company, 49 A.L.R. 1477.
Power of Public Service Commission in respect to alteration or extension of passenger service, 70 A.L.R. 841.
Right to make charge for telephone or other public utility service in excess of that fixed by public utility, 73 A.L.R. 1194.
Discrimination between telephone subscribers, or between them and nonsubscribers, as regards use of phone by third persons or charges therefor, 127 A.L.R. 728.
Membership corporation or association or cooperative group furnishing to its members electric, telephone, or other service commonly supplied by public utility, as subject to governmental regulation or to jurisdiction of Public Service Commission, 132 A.L.R. 1495.
Adequacy, as regards right to injunction, of other remedy for review of order fixing public utility rates, 8 A.L.R.2d 839.
Right of customers of public utility with respect to fund representing a refund from another supplying utility upon reduction of latter's rates, 18 A.L.R.2d 1343.
Community antenna television systems (CATV) as subject to jurisdiction of state public utility or service commission, 61 A.L.R.3d 1150.
Landlord supplying electricity, gas, water, or similar facility to tenant as subject to utility regulation, 75 A.L.R.3d 1204.
Telephone company's liability for disclosure of number or address of subscriber holding unlisted number, 1 A.L.R.4th 218.
Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority, 85 A.L.R.4th 894.
Incidental provision of transportation services, by party not primarily in that business, as common carriage subject to state regulatory control, 87 A.L.R.4th 638.
Public service commission's implied authority to order refund of public utility revenues, 41 A.L.R.5th 783.