TITLE 46 PUBLIC UTILITIES AND PUBLIC TRANSPORTATION

Section 3. Electrical Service, 46-3-1 through 46-3-541.

ARTICLE 1 GENERATION AND DISTRIBUTION OF ELECTRICITY GENERALLY

46-3-8. Exceptions, grandfather rights, and other rights.

Notwithstanding any other provision of this part, but subject to subsections (b) and (c) of this Code section, after March 29, 1973, service to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if utilized by one consumer and having single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater (excluding redundant equipment), may be extended and furnished, if chosen by the consumer:
1. By the primary supplier within a municipality if the premises are located anywhere within the limits of such municipality as they existed on March 29, 1973;
2. By a secondary supplier within the limits of a municipality as they existed on March 29, 1973, if the premises are located at least partially within 300 feet of the lines of such secondary supplier;
3. By any electric supplier if the premises are located within the initial corporate limits of a wholly new municipality;
4. By any electric supplier owning lines in a municipality if the premises are located in a geographic area annexed in any manner to such municipality after March 29, 1973; and
5. By any electric supplier if the premises are located outside the limits of a municipality.
Notwithstanding any other provision of this part, but subject to subsections (c) and (h) of this Code section, every electric supplier shall have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part, including any premises last and previously served by it which before or after March 29, 1973, have become disconnected from service for any reason, and including premises which before or after March 29, 1973, have been destroyed or dismantled and which are reconstructed after March 29, 1973, in substantial kind on approximately the same site.
Notwithstanding any other provision of this part:
1. Upon its own complaint or the complaint of any other electric supplier or any other interested party, the commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and after hearing, if a hearing is requested by any affected electric supplier or any other interested party, to find and determine that the service of an electric supplier then serving a premises or exclusively entitled under this part to serve such premises is not adequate or dependable or that such electric supplier's rates, charges, service rules and regulations, or the application thereof unreasonably discriminate in favor of or against the consumer utilizing such premises, or that an electric supplier is in violation of subsection (b) of Code Section 46-3-11. Upon such determination, the commission shall have the authority and jurisdiction to order such electric supplier within a reasonable time to make such improvements as will make its service adequate and dependable, or to order such electric supplier within not less than 30 days to cease employing such discriminatory rates, charges, service rules and regulations, or the application thereof or the practices prohibited by subsection (b) of Code Section 46-3-11 and to substitute in lieu thereof, subject to approval by the commission, rates, charges, service rules and regulations, and practices of application thereof which are not unreasonably discriminatory, or practices in conformity with subsection (b) of Code Section 46-3-11. If the commission finds and determines in its first consideration of the matter that such electric supplier is unwilling or unable within a reasonable time to make its service adequate and dependable, or is unwilling within 30 days to cease and correct such unreasonable discrimination or practices, or if it finds in a subsequent consideration of the matter that its order to improve service, its order to cease and correct the unreasonable discrimination, or its order to cease and correct such practices has not been timely and in good faith complied with, it may then order such electric supplier to cease or desist from serving such premises and order any other electric supplier which may reasonably do so to extend and furnish service to such premises; and
2. Upon the joint application of the affected electric suppliers, the commission shall have the authority and jurisdiction, after notice to all affected persons and after hearing, if a hearing is requested, to find and determine that the public convenience and necessity require, and thereupon to approve, the transfer of service from one electric supplier to another electric supplier.
Notwithstanding any other provision of this part, but subject to subsection (b) of this Code section, the commission may:
1. If it determines that an assignee electric supplier has breached the tenets of public convenience and necessity therein, reassign all or any portion of an area assigned to that assignee electric supplier to another electric supplier; and
2. If it determines that public convenience and necessity so require, assign to any electric supplier all or any portion of a geographic area which theretofore has been an unassigned area-A or an unassigned area-B.
Notwithstanding any other provision of this part:
1. No portion of a line constructed after March 29, 1973, by an electric supplier inside another electric supplier's assigned area, inside an unassigned area-A, or inside a municipality to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall acquire any other service rights therein or impair or diminish any service rights of an assignee electric supplier or the service rights accruing to the lines of any electric supplier inside any assigned area, unassigned area-A, or municipality, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
2. No portion of a line constructed after March 29, 1973, by an electric supplier inside an unassigned area-B to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall impair or diminish any service rights accruing to the lines of any other electric supplier inside such unassigned area-B, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
3. No portion of a line constructed after March 29, 1973, by an electric supplier for the initial sole purpose of furnishing service at wholesale shall acquire any other service rights or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
4. No electric supplier shall, after March 29, 1973, construct its lines to serve new premises except in accordance with sound electric utility standards. If, after a hearing involving the affected electric suppliers and any other interested party, the commission determines that an electric supplier is about to violate, is violating, or has violated such standards so as arbitrarily to preempt areas or arbitrarily to gain service rights for such a line, the commission is authorized and directed:
  1. To order the offending electric supplier to cease and desist such construction or to alter and relocate the same; or
  2. To declare that such line or any offending portion thereof shall not be taken into account in assigning an area or in locating an assigned area boundary or shall not acquire any service rights that would otherwise accrue thereto or impair or diminish any service rights accruing to the lines of any other electric supplier;
5. Any electric supplier may extend and furnish service to any of its own premises devoted to public service, whether the same shall have already been served by another electric supplier, but no line constructed for such purpose after March 29, 1973, shall acquire any other service right or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to other premises which it otherwise has the right to serve;
6. No line of a secondary supplier constructed prior to March 29, 1973, which on that date is not providing retail service to one or more premises within the limits of the municipality as they exist on that date shall acquire any service rights to provide retail service to any premises located within such municipal limits as they exist on that date.
The time at which an electric supplier, based upon the location or proximity of electric suppliers' lines as in this part provided for, shall be considered as having the right to extend and furnish, or as being restricted from extending and furnishing, service to new premises shall be the time at which written application for temporary construction or permanent service is made to any electric supplier by the consumer utilizing such premises or the time at which construction of such premises is commenced, whichever first occurs. The location of a premises for temporary construction service shall be deemed to be the same as the location of the premises which shall require permanent service after construction. If temporary construction service is required at one site for the purpose of beginning the construction of premises at two or more sites, this subsection shall not preclude an electric supplier, if chosen by the builder and having the right to serve at least one of the premises to be constructed, from furnishing all of such temporary construction service, notwithstanding the fact that one or more other electric suppliers may have and may exercise the exclusive right thereafter to extend and furnish the permanent service to one or more of the premises being constructed.
Whenever, after March 29, 1973, any new premises requiring service are so sited as to be located partially within an assigned area, an unassigned area-A, or an unassigned area-B and also partially within any other assigned area, unassigned area-A, or unassigned area-B, such premises may be served by that electric supplier chosen by the consumer utilizing such premises from among the electric suppliers which are eligible under this part to extend and furnish such service within any of such areas.
Notwithstanding any other provisions of this part, if a majority of those voters of a municipality which was not rendering electric service on March 29, 1973, approve, by means of referendum vote, the purchase, construction, extension, operation, and maintenance of an electric distribution system by that municipality, such municipality is granted the right of eminent domain to condemn all of the lines and other facilities of the primary supplier within such municipality and any secondary supplier located within the corporate limits of such municipality and used to serve customers therein at retail. This right shall expire, with respect to each such municipality, one year after the date the results of such referendum are declared unless, before that date, such municipality institutes proceedings to acquire such lines and other facilities under any of the statutory methods provided for the condemnation of private property. Upon a final order of condemnation of such lines and other facilities, such municipality shall become the primary supplier therein, the rights of the former primary supplier and any such secondary suppliers under subsection (b) of this Code section shall cease, and the consumers served thereby within such corporate limits shall be thereafter served by the municipality as the new primary supplier. The transfer of service shall be accomplished as nearly as practicable without interruption of service to the consumers. Electric suppliers are authorized to negotiate the sale and purchase of all or any part of any such lines and other facilities, and upon the transfer of title thereto the rights of the selling supplier under subsection (b) of this Code section shall cease.

(Ga. L. 1973, p. 200, § 9.)

Law reviews.

- For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001). For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).

JUDICIAL DECISIONS

No unconstitutional denial of equal protection in subsection (a).

- The exemption in subsection (a) of Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) allowing large load customers free choice was not arbitrary, capricious, or wholly unreasonable but based upon real differences between two groups of customers and between the effects upon electric utilities and the communities in which they locate. Therefore, that subsection is not a denial of equal protection prohibited by Ga. Const. 1976, Art. I, Sec. II, Para. III (Ga. Const. 1983, Art. I, Sec. I, Para. II). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

This section not unlawful attempt to regulate or fix charges of municipal utilities.

- Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) does not attempt to interfere with either the municipality or the electric membership corporation in the establishment of their rate levels. Therefore, it is clear that the section does not constitute an unlawful attempt to regulate or fix the charges of municipal utilities prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. IX (Ga. Const. 1983, Art. III, Sec. VI, Para. V), subject to the exception in Ga. Const. 1976, Art. IX, Sec. VIII, Para. I (Ga. Const. 1983, Art. IX, Sec. VI, Para. I, II; Art. XI, Sec. I, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Subsection (a) of Ga. L. 1973, p. 200, § 8 (see O.C.G.A. § 46-3-8) not shown to be unconstitutional under Const. 1976, Art. I, Sec. II, Para. VII. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Office park not within "large load" exception.

- Multi-building office park did not qualify for the benefit of the "large load" exception of O.C.G.A. § 46-3-8(a), where the premises was not conceived as a unified rental premises for its entire useful life and the metering arrangement for the premises did not comply in substance with the single-meter requirement of the exception. City of Norcross v. Georgia Power Co., 197 Ga. App. 891, 399 S.E.2d 725 (1990).

"Large load" exception strictly construed.

- The "large load" exception of O.C.G.A. § 46-3-8(a), being an exception to the general rule of competitive restriction, must be strictly construed. City of Norcross v. Georgia Power Co., 197 Ga. App. 891, 399 S.E.2d 725 (1990).

The large-load exception did not apply.

- An individually-metered apartment complex in which the complex's owner installed separate meters that were combined under a master or pass-through meter, notwithstanding that the owner paid the bill for the entire complex and employed an outside company to read the separate meters and bill each tenant for their individual usage did not qualify for the large load exception. Sawnee Elec. Mbrshp. Corp. v. Georgia PSC, 273 Ga. 702, 544 S.E.2d 158 (2001).

Large load consumer choice of electrical supplier evidenced by contract.

- Under the Georgia Territorial Act, a large load customer's choice of an electrical supplier must be evidenced by a binding contract with the supplier, reached through mutual assent and meeting the other requirements for contract formation under Georgia law. Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008), cert. denied, No. S09C0356, 2009 Ga. LEXIS 201 (Ga. 2009).

Large load consumer had valid contract with designated territorial supplier.

- An electric membership corporation alleged that an electric utility company, a consumer's designated territorial supplier, falsely told the consumer it did not qualify as a large load consumer under O.C.G.A. § 46-3-8(a) and thus had to select the utility as the consumer's provider, and that the consumer's request-for-services form was void because the form was based on this misrepresentation. As the hearing officer's findings - that the allegations of misrepresentation were untenable and that the consumer and utility had a binding contract - were supported by the evidence, the findings were upheld. Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008), cert. denied, No. S09C0356, 2009 Ga. LEXIS 201 (Ga. 2009).

Supplier not empowered to supply electricity to one not wanting any.

- Subsection (b) of Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) does not empower the city to supply electricity to one who does not want any electricity at all. Frier v. City of Douglas, 233 Ga. 775, 213 S.E.2d 607 (1975).

Subsection (b) inapplicable to temporary service.

- Subsection (b) of O.C.G.A. § 46-3-8, the grandfather clause, does not authorize a supplier of temporary electrical services to a large load consumer the exclusive right to later furnish permanent services to the consumer; therefore, a city's provision of temporary electrical service to a large load consumer at a construction site does not preclude the consumer under paragraph (a)(4) and subsection (f) from choosing another authorized supplier for permanent service to the completed site. City of LaGrange v. Georgia Power Co., 185 Ga. App. 60, 363 S.E.2d 286 (1987), cert. denied, 185 Ga. App. 909, 363 S.E.2d 286 (1988).

Transfer versus continuance of services.

- A city, which had been providing electricity to a high school, argued that a utility could not continue to service the school's ball field lights because the utility did not comply with the requirements of O.C.G.A. § 46-3-8(c)(2). This argument failed because § 46-3-8(c)(2) pertains to the transfer of electric service as opposed to the continuance of service. City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Electric supplier determined at time consumer applies for service.

- The fact that a consumer later builds a formerly uncontemplated structure in an area which would qualify the consumer for service by a secondary supplier does not abrogate the provision of O.C.G.A. § 46-3-8(f) that the electrical supplier is determined at the moment the consumer makes an application for service. City of Marietta Bd. of Lights & Water v. Georgia Power Co., 176 Ga. App. 123, 335 S.E.2d 467 (1985).

Nonretail service to premises outside agreed territory.

- Commission properly found city's plan to provide service to its own facility outside of service area did not violate Territorial Agreement. See North Ga. Elec. Membership Corp. v. City of Calhoun, 195 Ga. App. 382, 393 S.E.2d 510 (1990).

Continuing service under grandfather clause.

- Trial court properly upheld an agency decision that a power company had the right to continue service to an apartment complex under the grandfather clause to the Territorial Act, O.C.G.A. § 46-3-8(b), after individual meters were installed to replace one master meter because none of the exceptions to the grandfather clause existed and the challenging electric corporation failed to raise the corporation's challenge to the application of the grandfather clause before the agency. Excelsior Elec. Mbrshp. Corp. v. Ga. PSC, 322 Ga. App. 687, 745 S.E.2d 870 (2013).

New premises distinct from older facility.

- A new jail built on land owned by a county and on which an existing correctional facility is also located, although connected by permanent enclosed covered walkways to a new, free-standing dining facility which was built at the same time as the new jail was not an addition to or extension of the existing correctional facility, but was a new premises physically separate from the existing facility, physically distinct with a separate electric system. The two facilities constituted two separate entities in terms of purpose and operation with two different legal entities responsible for operating the different facilities. Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 399 S.E.2d 497 (1990).

Under O.C.G.A. § 46-3-8(a), a utility was entitled to provide electrical service to a high school's new auditorium, even though a city had been providing service to the school itself, as the utility was providing service to new premises. O.C.G.A. § 46-3-3(6) defined "premises" as separately metered structures; the auditorium was separately metered from the school, and the city could not explain how the facilities could properly be billed through a single master meter. City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986); Jackson Elec. Membership Corp. v. Georgia Power Co., 257 Ga. 772, 364 S.E.2d 556 (1988); Federated Dep't Stores, Inc. v. Ga. PSC, 278 Ga. App. 239, 628 S.E.2d 658 (2006).

RESEARCH REFERENCES

ALR.

- Duty to extend electrical service or supply individual applicant as affected by cost involved, 58 A.L.R. 537.

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