TITLE 46 PUBLIC UTILITIES AND PUBLIC TRANSPORTATION

Section 2. Public Service Commission, 46-2-1 through 46-2-95.

ARTICLE 2 JURISDICTION, POWERS, AND DUTIES GENERALLY

46-2-23. Rate-making power of commission generally; special provisions concerning telecommunications companies.

The commission shall have exclusive power to determine what are just and reasonable rates and charges to be made by any person, firm, or corporation subject to its jurisdiction.
As to those telecommunications companies subject to the jurisdiction of the commission, the commission is not required to fix and determine specific rates, tariffs, or charges for the services offered by said telecommunications companies and in lieu thereof may on application of an interested party or on its own motion after public notice and hearing:
1. Totally deregulate a service;
2. Totally eliminate any tariffs on a service;
3. Eliminate tariff rates for a service but retain tariffs for service standards and requirements; or
4. Eliminate tariff rates for a service but require that notice of any rate changes be provided to the commission.
In determining what actions, if any, are to be taken on applications under subsection (b) of this Code section, the commission shall conduct hearings at which it shall consider the following factors:
1. The extent to which competing telecommunications services are available from competitive providers in the relevant geographic market;
2. The ability of competitive providers to make functionally equivalent or substitute services readily available;
3. The number and size of competitive providers of service;
4. The overall impact of the proposed regulatory change on the continued availability of existing services at just and reasonable rates;
5. The impact of the proposed regulatory change upon efforts to promote universal availability of basic telecommunications services at affordable rates and to permit telecommunications companies subject to the jurisdiction of the commission to respond to competitive thrusts; and
6. Such other factors as the commission may determine are in the public interest.
Nothing in this Code section shall authorize the application of subsection (b) of this Code section to any service unless functionally equivalent or substitute services are readily available from competitive providers in the relevant geographic market. This finding must be made on the record after public hearing.
Any telecommunications service deregulated or detariffed under this Code section may be reregulated or resubjected to tariffing by the commission if the commission finds, through a proceeding initiated on its own or upon application by an interested party, that such reregulation or retariffing is in the public interest.
Nothing in this Code section shall be interpreted as requiring the commission to alter, amend, or repeal any rule or regulation which relates to any telecommunications company and which has been adopted by the commission or which is under consideration for adoption by the commission as of April 14, 1988.
No telecommunications company may use current revenues earned or expenses incurred in conjunction with services subject to regulation to subsidize services which are not regulated or tariffed. The commission may adopt procedural rules as necessary to implement this subsection.

(Code 1981, §46-2-23, enacted by Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1988, p. 1988, § 1; Ga. L. 1990, p. 8, § 46; Ga. L. 1992, p. 6, § 46; Ga. L. 2002, p. 415, § 46; Ga. L. 2009, p. 303, §§ 12, 15/HB 117; Ga. L. 2012, p. 847, § 5/HB 1115.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted former subsection (h), which read: "Nothing in this Code section shall be interpreted as amending, modifying, altering, or repealing Chapter 6 of this title, known as the 'Georgia Radio Utility Act.'" and redesignated former subsection (i) as present subsection (h).

The 2009 amendment, effective April 30, 2009, in subsection (h), substituted "House Energy, Utilities and Telecommunications Committee" for "Industry Committee of the House of Representatives" and substituted "Senate Regulated Industries and Utilities Committee" for "Finance and Public Utilities Committee of the Senate". See Editor's notes for intent.

The 2012 amendment, effective July 1, 2012, deleted former subsection (h), which read: "Beginning one year after deregulation or eliminating tariffs on a service, the utility will file within 60 days of such anniversary date with the commission a report showing the rates or tariffs for such service on the effective date of deregulation or detariffing and the rates or tariffs on the anniversary date. Such reports will continue to be filed on an updated basis annually for a period of five years. The commission may prescribe the form and content of such reports. The commission will thereafter as soon as practicable file a summary of the results and contents of such reports with the House Energy, Utilities and Telecommunications Committee and the Senate Regulated Industries and Utilities Committee."

Cross references.

- Authority of General Assembly regarding regulation of public utility rates, Ga. Const. 1983, Art. III, Sec. VI, Para. V.

Prohibition against gratuities, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "April 14, 1988" was substituted for "the effective date of this Code section" at the end of subsection (f) and subsections (f.1) and (g) were redesignated as subsections (g) and (h), respectively.

Editor's notes.

- Ga. L. 1990, p. 8, § 55, repealed Ga. L. 1988, p. 1988, § 2, providing for certain reports after deregulation or elimination of tariffs on a service. These provisions may now be found in subsection (h) of this Code section.

Ga. L. 2009, p. 303, § 20, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

Law reviews.

- For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009).

JUDICIAL DECISIONS

Legislature's power to regulate.

- The grant of authority to regulate public utilities to the Public Service Commission, to the exclusion of other executive branch agencies, does not mean that the General Assembly has divested itself of its constitutional power to regulate public utilities. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

Review of commission order lowering electric rates.

- Order of Public Service Commission lowering rates charged for electricity is quasi-legislative in character, and writ of certiorari will not lie from the superior court to review such an order. Mutual Light & Water Co. v. City of Brunswick, 158 Ga. 677, 124 S.E. 178 (1924).

Agency decision supported by facts.

- Where the Public Service Commission granted a rate increase, but disallowed some of the utility company's costs in calculating the rate base for a fair increase because it concluded that some of the costs were the result of the company's imprudent management of the project, the agency's decision was within its authority and was supported by the facts. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990).

As O.C.G.A. § 46-2-23(a) authorized the Georgia Public Service Commission to determine "just and reasonable" rates for electric service, and the evidence formed a sufficient basis for the Commission's decision to reallocate franchise fees paid to municipalities in exchange for access to municipal roads and rights-of-way so as to reduce the burden on non-municipal customers, the Commission's decision was not arbitrary, capricious, or unreasonable. Unified Gov't v. Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008).

Failure to state a claim.

- Where consumers alleged that they suffered an injury to their business and property, within the purview of 18 U.S.C. § 1964(c), in the form of excessive and illegal charges paid for electrical utility services, the consumer's arguments were rejected because they did not possess a legal right to be charged a lower rate than they were actually charged, and therefore they failed to state a claim upon which relief could have been granted. Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992).

Consumer cannot establish own rate.

- Since the legislature has provided by law that the Public Service Commission shall establish the legal rate for a utility's services, although a consumer of a utility's services has the right to participate in the rate-setting process within the parameters set up by this legislature, the consumer has no legal right to pay any rate other than the one established by the Public Service Commission. Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992).

A rate-payer has no legal right to a rate other than that established by the commission, or filed by a utility and accepted by the commission. Carr v. Southern Co., 263 Ga. 771, 438 S.E.2d 357 (1994).

In a putative class action against the power company regarding the collection of municipal franchise fees, the plaintiffs were not required to exhaust administrative remedies before bringing their putative class action because the plaintiffs did not seek judicial relief from the Public Service Commission's orders; the plaintiffs did not dispute that the Commission could authorize the collection of those fees; the merits of the case were not committed by law to the exclusive jurisdiction of the Commission; and the putative class action would not infringe upon the Commission's exclusive jurisdiction to make just and reasonable rates for electrical service. Ga. Power Co. v. Cazier, 303 Ga. 820, 815 S.E.2d 922 (2018).

Municipalities had standing to appeal agency's ruling.

- As a municipal association intervened in rate-making proceedings before the Georgia Public Service Commission (PSC), and certain municipalities joined the association's arguments in the trial court, the municipalities had standing to appeal the PSC's decision concerning a reallocation of franchise fees paid to the cities, even though the municipalities did not apply to intervene before the PSC under O.C.G.A. § 46-2-59. Unified Gov't v. Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008).

RESEARCH REFERENCES

ALR.

- Public utilities: validity of preferential rates for elderly or low-income persons, 29 A.L.R.4th 615.

Syfert Injury Law Firm

2018 Georgia Code 46-2-23 | Car Wreck Lawyer