TITLE 46 PUBLIC UTILITIES AND PUBLIC TRANSPORTATION

Section 5. Telephone Service, 46-5-1 through 46-5-252.

ARTICLE 1 GENERAL PROVISIONS

46-5-1. Exercise of power of eminent domain by telephone companies; placement of posts and other fixtures; regulation of construction of fixtures, posts, and wires near railroad tracks; liability of telephone companies for damages; required information; due compensation.

1. Any telephone company chartered by the laws of this or any other state shall have the right to construct, maintain, and operate its lines and facilities upon, under, along, and over the public roads and highways and rights of way of this state with the approval of the county or municipal authorities in charge of such roads, highways, and rights of way. The approval of such municipal authorities shall be limited to the process set forth in paragraph (3) of subsection (b) of this Code section, and the approval of the county shall be limited to the permitting process set forth in subsection (c) of this Code section. Upon making due compensation, as defined for municipal authorities in paragraph (9) of subsection (b) of this Code section and as provided for counties in subsection (c) of this Code section, a telephone company shall have the right to construct, maintain, and operate its lines through or over any lands of this state; on, along, and upon the right of way and structures of any railroads; and, where necessary, under or over any private lands; and, to that end, a telephone company may have and exercise the right of eminent domain.
2. Notwithstanding any other law, a municipal authority or county shall not:
  1. Require any telephone company to apply for or enter into an individual license, franchise, or other agreement with such municipal authority or county; or
  2. Impose any occupational license tax or fee as a condition of placing or maintaining lines and facilities in its public roads and highways or rights of way, except as specifically set forth in this Code section.
3. A county or municipal authority shall not impose any occupational license, tax, fee, regulation, obligation, or requirement upon the provision of the services described in paragraphs (1) and (2) of Code Section 46-5-221, including any occupational license, tax, fee, regulation, obligation, or requirement specifically set forth in any part of this chapter other than Part 4.
4. Whenever a telephone company exercises its powers under paragraph (1) of this subsection, the posts, arms, insulators, and other fixtures of its lines shall be erected, placed, and maintained so as not to obstruct or interfere with the ordinary use of such railroads or public roads and highways, or with the convenience of any landowners, more than may be unavoidable. Any lines constructed by a telephone company on the right of way of any railroad company shall be subject to relocation so as to conform to any uses and needs of such railroad company for railroad purposes. Such fixtures, posts, and wires shall be erected at such distances from the tracks of said railroads as will prevent any and all damage to said railroad companies by the falling of said fixtures, posts, or wires upon said railroad tracks; and such telephone companies shall be liable to said railroad companies for all damages resulting from a failure to comply with this Code section.
5. No county or municipal authority shall impose upon a telephone company any build-out requirements on network construction or service deployment, and, to the extent that a telephone company has elected alternative regulation pursuant to Code Section 46-5-165, such company may satisfy its obligations pursuant to paragraph (2) of Code Section 46-5-169 by providing communications service, at the company's option, through any affiliated companies and through the use of any technology or service arrangement; provided, however, that such company shall remain subject to its obligations as set forth in paragraphs (4) and (5) of Code Section 46-5-169. The obligations required pursuant to paragraph (2) of Code Section 46-5-169 shall not apply to a telephone company that has elected alternative regulation pursuant to Code Section 46-5-165 and does not receive distributions from the Universal Access Fund as provided for in Code Section 46-5-167.
1. Except as set forth in paragraph (6) of this subsection, any telephone company that places or seeks to place lines and facilities in the public roads and highways or rights of way of a municipal authority shall provide to such municipal authority the following information:
  1. The name, address, and telephone number of a principal office and local agent of such telephone company;
  2. Proof of certification from the Georgia Public Service Commission of such telephone company to provide telecommunications services in this state;
  3. Proof of insurance or self-insurance of such telephone company adequate to defend and cover claims of third parties and of municipal authorities;
  4. A description of the telephone company's service area, which description shall be sufficiently detailed so as to allow a municipal authority to respond to subscriber inquiries. For the purposes of this paragraph, a telephone company may, in lieu of or as a supplement to a written description, provide a map on 8 1/2 by 11 inch paper that is clear and legible and that fairly depicts the service area within the boundaries of the municipal authority. If such service area is less than the boundaries of an entire municipal authority, the map shall describe the boundaries of the geographic area to be served in clear and concise terms;
  5. A description of the services to be provided;
  6. An affirmative declaration that the telephone company shall comply with all applicable federal, state, and local laws and regulations, including municipal ordinances and regulations, regarding the placement and maintenance of facilities in the public rights of way that are reasonable, nondiscriminatory, and applicable to all users of the public rights of way, including the requirements of Chapter 9 of Title 25, the "Georgia Utility Facility Protection Act"; and
  7. A statement in bold type at the top of the application as follows: "Pursuant to paragraph (2) of subsection (b) of Code Section 46-5-1 of the Official Code of Georgia Annotated, the municipal authority shall notify the applicant of any deficiencies in this application within 15 business days of receipt of this application."
2. If an application is incomplete, the municipal authority shall notify the telephone company within 15 business days of the receipt of such application; such notice shall specifically identify all application deficiencies. If no such notification is given within 15 business days of the receipt of an application, such application shall be deemed complete.
3. Within 60 calendar days of the receipt of a completed application, the municipal authority may adopt such application by adoption of a resolution or ordinance or by notification to the telephone company. The failure of a municipal authority to adopt an application within 60 calendar days of the receipt of a completed application shall constitute final adoption of such application.
4. If it modifies its service area or provisioned services identified in the original application, the telephone company shall notify the municipal authority of changes to the service area or the services provided. Such notice shall be given at least 20 days prior to the effective date of such change. Such notification shall contain a geographic description of the new service area or areas and new services to be provided within the jurisdiction of the affected municipal authority, if any. The municipal authority shall provide to all telephone companies located in its rights of way written notice of annexations and changes in municipal corporate boundaries which, for the purposes of this Code section, shall become effective 30 days following receipt.
5. An application adopted pursuant to this Code section may be terminated by a telephone company by submitting a notice of termination to the affected municipal authority. For purposes of this Code section, such notice shall identify the telephone company, the affected service area, and the effective date of such termination, which shall not be less than 60 calendar days from the date of filing the notice of termination.
6. Any telephone company that has previously obtained permits for the placement of its facilities, has specified the name of such telephone company in such permit application, has previously placed its facilities in any public right of way, and has paid and continues to pay any applicable municipal authority's occupational license taxes, permit fees, franchise fees, except as set forth in paragraph (8) of this subsection, or, if applicable, county permit fees shall be deemed to have complied with this Code section without any further action on the part of such telephone company except as set forth in paragraphs (8), (9), (11), and (17) of this subsection.
7. Any telephone company that has placed lines and facilities in the public roads and highways or rights of way of a municipal authority without first obtaining permits or otherwise notifying the appropriate municipal authority of its presence in the public roads and highways or rights of way shall provide the information required by paragraph (1) of this subsection, if applicable, to such municipal authority on or before October 1, 2008. As of October 1, 2008, if any telephone company, other than those who meet the requirements of paragraph (6) of this subsection, has failed or fails to provide the information required by paragraph (1) of this subsection to the municipal authority in which its lines or facilities are located, such municipal authority shall provide written notice to such telephone company giving that company 15 calendar days from the date of receipt of such notice to comply with this subsection. In the event the 15 calendar day cure period expires without compliance, such municipal authority may petition the Georgia Public Service Commission which shall, after an opportunity for a hearing, order the appropriate relief.
8. 1. In the event any telephone company has an existing, valid municipal franchise agreement as of January 1, 2008, the terms and conditions of such existing franchise agreement shall only remain effective and enforceable until the expiration of the existing agreement or December 31, 2012, whichever shall first occur.
  2. In the event any telephone company is paying an existing occupational license tax or fee, based on actual recurring local services revenues, as of January 1, 2008, such payment shall be considered the payment of due compensation without further action on the part of the municipal authority. In the event that the rate of such existing tax or fee exceeds 3 percent of actual recurring local service revenues, that rate shall remain effective until December 31, 2012; thereafter, the payment by such telephone company at the rate of 3 percent shall be considered the payment of due compensation without further action on the part of the municipal authority.
9. As used in this Code section, "due compensation" for a municipal authority means an amount equal to no more than 3 percent of actual recurring local service revenues received by such company from its retail, end user customers located within the boundaries of such municipal authority. "Actual recurring local service revenues" means those revenues customarily included in the Uniform System of Accounts as prescribed by the Federal Communications Commission for Class "A" and "B" companies; provided, however, that only the local service portion of the following accounts shall be included:
  1. Basic local service revenue, as defined in 47 C.F.R. 32.5000;
  2. Basic area revenue, as defined in 47 C.F.R. 32.5001;
  3. Optional extended area revenue, as defined in 47 C.F.R. 32.5002;
  4. Public telephone revenue, as defined in 47 C.F.R. 32.5010;
  5. Local private line revenue, as defined in 47 C.F.R. 35.5040; provided, however, that the portion of such accounts attributable to audio and video program transmission service where both terminals of the private line are within the corporate limits of the municipal authority shall not be included;
  6. Other local exchange revenue, as defined in 47 C.F.R. 32.5060;
  7. Local exchange service, as defined in 47 C.F.R. 32.5069;
  8. Network access revenue, as defined in 47 C.F.R. 32.5080;
  9. Directory revenue, as defined in 47 C.F.R. 32.5230; provided, however, that the portion of such accounts attributable to revenue derived from listings in portion of directories not considered white pages shall not be included;
  10. Nonregulated operating revenue, as defined in 47 C.F.R. 32.5280; provided, however, that the portion of such accounts attributable to revenues derived from private lines shall not be included; and
  11. Uncollectible revenue, as defined in 47 C.F.R. 32.5300.
    Any charge imposed by a municipal authority shall be assessed in a nondiscriminatory and competitively neutral manner.
10. Any due compensation paid to municipal authorities pursuant to paragraph (9) of this subsection shall be in lieu of any other permit fee, encroachment fee, degradation fee, disruption fee, business license tax, occupational license tax, occupational license fee, or other fee otherwise permitted pursuant to the provisions of subparagraph (A) of paragraph (7) of Code Section 36-34-2 or Code Section 32-4-92 et seq. or any other provision of law regardless of nomenclature.
11. A telephone company with facilities in the public rights of way of a municipal authority shall begin assessing due compensation, as defined in subsection (a) of this Code section, on subscribers on the date that service commences unless such company is currently paying a municipal authority's occupational license tax. Such due compensation shall be paid directly to each affected municipal authority within 30 calendar days after the last day of each calendar quarter. In the event that due compensation is not paid on or before 30 calendar days after the last day of each calendar quarter, the affected municipal authority shall provide written notice to such telephone company, giving such company 15 calendar days from the date such company receives such notice to cure any such nonpayment. In the event the due compensation remitted to the affected municipal authority is not postmarked on or before the expiration of the 15 day cure period, such company shall pay interest thereon at a rate of 1 percent per month to the affected municipal authority. If the 15 day cure period expires on a Saturday, a Sunday, or a state legal holiday, the due date shall be the next business day. A telephone company shall not be assessed any interest on late payments if due compensation was submitted in error to a neighboring municipal authority.
12. Each municipal authority may, no more than once annually, audit the business records of a telephone company to the extent necessary to ensure payment in accordance with this Code section. As used in this Code section, "audit" means a comprehensive review of the records of a company which is reasonably related to the calculation and payment of due compensation. Once any audited period of a company has been the subject of a requested audit, such audited period of such company shall not again be the subject of any audit. In the event of a dispute concerning the amount of due compensation due to an affected municipal authority under this Code section, an action may be brought in a court of competent jurisdiction by an affected municipal authority seeking to recover an additional amount alleged to be due or by a company seeking a refund of an alleged overpayment; provided, however, that any such action shall be brought within three years following the end of the quarter to which the disputed amount relates, although such time period may be extended by written agreement between the company and such affected municipal authority. Each party shall bear the party's own costs incurred in connection with any dispute. The auditing municipal authority shall bear the cost of the audit; provided, however, that if an affected municipal authority files an action to recover alleged underpayments of due compensation and a court of competent jurisdiction determines the company has underpaid due compensation due for any 12 month period by 10 percent or more, such company shall be required to pay such municipal authority's reasonable costs associated with such audit along with any due compensation underpayments; provided, further, that late payments shall not apply. All undisputed amounts due to a municipal authority resulting from an audit shall be paid to the municipal authority within 45 days, or interest shall accrue.
13. The information provided pursuant to paragraph (1) of this subsection and any records or information furnished or disclosed by a telephone company to an affected municipal authority pursuant to paragraph (12) of this subsection shall be exempt from public inspection under Article 4 of Chapter 18 of Title 50. It shall be the duty of such telephone company to mark all such documents as exempt from Article 4 of Chapter 18 of Title 50, and the telephone company shall defend, indemnify, and hold harmless any municipal authority and any municipal officer or employee in any request for, or in any action seeking, access to such records.
14. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim an affected municipal authority may have for further or additional sums payable as due compensation.
15. Any amounts overpaid by a company as due compensation shall be deducted from future due compensation owed.
16. A telephone company paying due compensation pursuant to this Code section may designate that portion of a subscriber's bill attributable to such charge as a separate line item of the bill and recover such amount from the subscriber.
17. Nothing in this Code section shall affect the authority of a municipal authority to require telephone companies accessing the public roads and highways and rights of way of a municipal authority to obtain permits and otherwise comply with the reasonable regulations established pursuant to paragraph (10) of subsection (a) of Code Section 32-4-92.
18. If a telephone company does not have retail, end user customers located within the boundaries of a municipal authority, then the payment by such company at the same rates that such payments were being made as of January 1, 2008, to a municipal authority for the use of its rights of way shall be considered the payment of due compensation; provided, however, that at the expiration date of any existing agreement for use of such municipal rights of way or December 31, 2012, whichever is earlier, the payment at rates in accordance with the rates set by regulations promulgated by the Department of Transportation shall be considered the payment of due compensation. Provided, further, that if a telephone company begins providing service after January 1, 2008, and such telephone company does not have retail, end user customers located within the boundaries of a municipal authority, the payment by such company at rates in accordance with the rates set by regulations promulgated by the Department of Transportation to a municipal authority for the use of its rights of way shall be considered the payment of due compensation.
19. Nothing in this Code section shall be construed to affect any franchise fee payments which were in dispute on or before January 1, 2008.
If a telephone company accesses the public roads and highways and rights of way of a county and such county requires such telephone company to pay due compensation, such due compensation shall be limited to an administrative cost recoupment fee which shall not exceed such county's direct, actual costs incurred in its permitting process, including issuing and processing permits, plan reviews, physical inspection and direct administrative costs; and such costs shall be demonstrable and shall be equitable among applicable users of such county's roads and highways or rights of way. Permit fees shall not include the costs of highway or rights of way acquisition or any general administrative, management, or maintenance costs of the roads and highways or rights of way and shall not be imposed for any activity that does not require the physical disturbance of such public roads and highways or rights of way or does not impair access to or full use of such public roads and highways or rights of way. Nothing in this Code section shall affect the authority of a county to require a telephone company to comply with reasonable regulations for construction of telephone lines and facilities in public highways or rights of way pursuant to the provisions of paragraph (6) of Code Section 32-4-42.

(Ga. L. 1873, p. 69, § 2; Code 1873, § 3023; Code 1882, § 3023; Ga. L. 1889, p. 141, §§ 1, 2; Civil Code 1895, §§ 2346, 2347; Ga. L. 1905, p. 79, § 1; Civil Code 1910, §§ 2810, 2811; Code 1933, §§ 104-204, 104-205; Ga. L. 2008, p. 451, § 1/SB 379; Ga. L. 2012, p. 218, § 14/HB 397; Ga. L. 2012, p. 847, § 6/HB 1115; Ga. L. 2014, p. 866, § 46/SB 340; Ga. L. 2015, p. 5, § 46/HB 90; Ga. L. 2016, p. 864, § 46/HB 737.)

The 2008 amendment, effective July 1, 2008, designated the existing provisions of subsection (a) as paragraph (a)(1); in paragraph (a)(1), in the first sentence, inserted "and facilities", inserted "roads and", inserted "and rights of way", deleted the comma following "this state", inserted "roads,", and added ", and rights of way.", added the second sentence, and, in the third sentence, inserted "as defined for municipal authorities in paragraph (9) of subsection (b) of this Code section and as provided for counties in subsection (c) of this Code section,"; added paragraphs (a)(2) and (a)(3); redesignated former subsection (b) as paragraph (a)(4); in paragraph (a)(4), in the first sentence, substituted "under paragraph (1) of this subsection," for "under subsection (a) of this Code section,", substituted "shall" for "must", and inserted "roads and" and, in the second sentence, substituted "such railroad" for "the railroad"; added paragraph (a)(5); and added subsections (b) and (c).

The 2012 amendments. The first 2012 amendment, effective April 17, 2012, in paragraph (b)(13), substituted "Article 4 of Chapter 18 of Title 50" for "Code Section 50-18-70" in the first sentence and substituted "Article 4 of Chapter 18 of Title 50" for "Code Section 50-18-70, et seq." in the second sentence. The second 2012 amendment, effective July 1, 2012, deleted "telegraph or" and "telegraph and" preceding "telephone" throughout this Code section; and added the second sentence of paragraph (a)(5).

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, substituted "this subsection" for "subsection (b) of this Code section" in paragraph (b)(7).

The 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, substituted "47 C.F.R. 32.5230" for "47 C.F.R. 32.5320" in subparagraph (b)(9)(I).

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "or as a supplement" for "or as supplement" near the beginning of the second sentence in subparagraph (b)(1)(D).

Cross references.

- Similar provisions regarding exercise of power of eminent domain for construction, maintenance, etc., of telegraph and telephone lines along railroad rights of way, § 22-3-1 et seq.

Grants by State Properties Commission of revocable license to encroach upon property under custody and control of State Properties Commission, § 50-16-42.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, in subparagraph (a)(2)(B), substituted "section" for "Section" at the end and in paragraph (b)(11), substituted "subsection (a) of this Code section" for "paragraph (a) of this subsection" in the first sentence.

Law reviews.

- For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 139 (2012).

JUDICIAL DECISIONS

Editor's notes.

- See Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 288 S.E.2d 705 (1982), which states that the dicta contained in City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953), stating that by virtue of this Code section a telephone company holds a right to use the streets of a municipality by virtue of a franchise from the state, was unnecessary to the opinion in that case, was unsupported by any citation of Georgia law, and was incorrect.

Construction of language.

- The word "or" as used in former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) must be construed as having a conjunctive, and not a disjunctive, meaning. Comer v. AT & T, 176 Ga. 651, 168 S.E. 786 (1933).

Former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1], to the effect that any telegraph or telephone company, in the exercise of power of eminent domain, shall have right to construct, maintain, and operate telegraph or telephone lines, or both, where necessary "under or over" any private lands in this state, must, upon a consideration of the entire section, be construed as authorizing the company to construct, maintain, and operate its lines both under and over such lands, where necessary for public use served by such company. Comer v. AT & T, 176 Ga. 651, 168 S.E. 786 (1933).

Term "other fixtures" of telephone line includes telephone wires. Southern Bell Tel. & Tel. Co. v. Scogin, 136 Ga. App. 318, 221 S.E.2d 203 (1975).

Fact that cable company transmitted more than traditional voice communications did not take the cable company outside the realm of O.C.G.A. § 46-5-1(a). Davis v. Williams Communs., Inc., 258 F. Supp. 2d 1348 (N.D. Ga. 2003).

Sufficient compliance with O.C.G.A.

§ 22-1-6 shown. - Trial court did not err in denying the property owners' motion to dismiss the condemnation petition, nor in overruling the owners' exception to the special master's award, because the evidence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6. White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016).

City could not by contract override police power imposed on it.

- Whatever construction could be placed on any contractual franchise right granted by the city to the telephone company, the city could not by contract or otherwise override the police power imposed in it. Neither could the state through former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1]do away with its constitutional power to require the plaintiff telephone company to remove its underground conduit from a specific locality to another locality at its own expense, where such removal is necessitated for the safety, protection, welfare, and health of the citizens. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Municipality cannot divest itself of police powers conferred upon it by Legislature.

- The grant by a municipality to a public service company of the right to use streets does not divest the municipality of its police power over the grantee in relation to its use of such streets. Furthermore, it is well settled that it is not within the power of a municipality, in any franchise it may confer upon or contract with, a public utility company, to divest itself of its governmental police power, the exercise of which is necessary for the public welfare and the preservation of the public safety. Nor can a municipality grant away or limit the police powers conferred upon it by the legislature. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Right of telegraph or telephone company to use public roads of this state in order to construct its lines for transmission of interstate messages, granted by act of Congress, is to be enjoyed in subordination to public use and private rights, and subject to any lawful exercise of the police power belonging to the state or to its municipalities or counties. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Location of telephone cables beneath street subject to future regulation.

- As far as the location of the telephone cables underneath the particular street is concerned, it is subject to such future regulation as might be required in the interest of the public health and welfare. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Fundamental common-law right applicable to franchise in streets is that a utility company must relocate its facilities in the public streets when changes are required by public necessity; and, although authorized to lay its pipes in the public streets, the company takes the risk of their location and is bound to make such changes as the public convenience and security require, at its own cost and charge. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

City can require company to remove facilities from street at expense of company.

- A city can require a public service company, to which it has granted a franchise to use the streets of the city, to remove its facilities from a portion of one street to another location, where it appears that the portion of the street whereon such facilities are located is closed and dedicated to the use of the municipal hospital, it appearing that the public health and welfare require the use thereof for hospital purposes; and that the company and not the city must bear the cost of removal and relocation. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Telephone company acquires no indefeasible right to any street when granted franchise.

- The telephone company, when a franchise to use the streets of a city for installing its telephone facilities is granted, acquires no indefeasible right to any particular street or part of a street and takes this grant subject to the right of the city to require a change of location of the telephone lines if good reasons exist therefor. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Telephone company acquires right to general use of streets for installation of facilities.

- The telephone company acquires by virtue of former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) only the right to use generally the public streets of a city for the purpose of installing the facilities with which it furnishes telephone service to the public. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

"Ordinary use" of public streets and highways contemplates use as provided by law.

- When the public streets and highways are used in such a manner as to violate the law, such use is not "ordinary." Southern Bell Tel. & Tel. Co. v. Scogin, 136 Ga. App. 318, 221 S.E.2d 203 (1975).

Temporary obstruction by telephone company not violative of public right to use street for travel.

- The temporary obstruction of the street by the telephone company is not a violation of any right of the public to use the same for travel. Dekle v. Southern Bell Tel. & Tel. Co., 208 Ga. 254, 66 S.E.2d 218 (1951), overruled on other grounds, Peachtree-Cain Co. v. McBee, 254 Ga. 91, 327 S.E.2d 188 (1985).

Uncompensated obedience to regulation not taking or damaging of private property.

- Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not a taking or damaging without just compensation of private property, or of private property affected with a public interest. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

Power, telephone, and telegraph companies all have power of eminent domain, and could exercise that power to acquire the right to erect their lines upon the railroad's right of way. That they choose to acquire by contract such right, as against the railroad, does not render the railroad company liable for their alleged failure also to compensate the plaintiff for the taking or damaging of plaintiff's property by their erection of power and communication lines on the railroad's right of way. Tompkins v. Atlantic Coast Line R.R., 89 Ga. App. 171, 79 S.E.2d 41 (1953).

Intent of former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) was was that the owner of a telephone pole is not liable for its alleged negligent placement in a public road right of way where such pole was located with the approval of the county or municipal authorities and did not obstruct or interfere with the ordinary use of the public highway. This conclusion was further supported by former Code 1933, § 69-304 (see O.C.G.A. § 36-30-10). Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972).

Maintenance of poles in middle of street does not constitute negligence as matter of law.

- Since the city can lawfully authorize the erection of the poles in the middle of the street, the acquiescence by the city in the maintenance of the poles in the middle of the street, although they had originally been erected there by the power company in violation of the restriction placed by the city on the manner of their erection, amounts to a waiver by the city of the restriction which it had imposed upon the power company, and the maintenance by the power company of the poles in the middle of the street, while acquiesced in by the city, and where otherwise not unlawful, does not, as to persons lawfully using the street, constitute negligence as a matter of law. Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881, 194 S.E.2d 910 (1972).

Municipality estopped by past actions from asserting that company without approval to use streets.

- A municipality, by permitting the location and construction of the lines of a telephone or telegraph company along the streets and highways for a considerable length of time and dealing with the company so as to evince its approval of the occupancy of such streets and highways, may be estopped from asserting that the company has not procured its approval to use the streets. City of Macon v. Southern Bell Tel. & Tel. Co., 89 Ga. App. 252, 79 S.E.2d 265 (1953).

City and company chargeable with any negligence resulting from condition.

- Where the wires of a telephone company which were strung over the street of a city were lowered by the city and came into contact with highly electrically charged electric light wires and there remained, both the city, as creator of the condition, and the telephone company, by failing to discover the dangerous situation were chargeable with any negligence which arose by virtue of this condition of the telephone wire. Bleckley v. Western Carolina Tel. Co., 42 Ga. App. 110, 155 S.E. 83 (1930).

Company not relieved of negligence created by placement of pole in dangerous situation.

- The fact that a company has a legal right to place a pole within four inches of the paved portion of the highway insofar as the right to the use of the land occupied by the pole is concerned will not relieve it of negligence if the pole creates a dangerous situation. Blunt v. Spears, 93 Ga. App. 623, 92 S.E.2d 573, rev'd on other grounds sub nom. Southern Bell Tel. & Tel. Co. v. Spears, 212 Ga. 537, 93 S.E.2d 659 (1956).

Cable company can contract with railroad to construct line along railroad's right of way.

- Cable company that possessed certificate of authorization from Georgia Public Service Commission that allowed it to exercise eminent domain under O.C.G.A. § 46-5-1(a) properly entered into contract with railroad, in lieu of eminent domain proceedings, to allow construction of communication lines along railroad's rights of way; under Georgia law, the railroad could not have been held liable for entering into this contract. Davis v. Williams Communs., Inc., 258 F. Supp. 2d 1348 (N.D. Ga. 2003).

Cited in Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354, 46 S.E. 422, 100 Am. St. R. 174 (1904); Western Union Tel. Co. v. Western & A.R.R., 142 Ga. 532, 83 S.E. 135 (1914); Georgia Power Co. v. Zimmerman, 133 Ga. App. 786, 213 S.E.2d 12 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Telegraph company must bear expense of moving.

- Where a telegraph company occupies a railway right of way, it must bear the expense of moving if highway changes necessitate railway facility changes. 1958-59 Op. Att'y Gen. p. 190.

Power of placing and operating poles and lines conferred by this section.

- The only power sought to be conferred by former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1] was the power of placing and operating poles and lines along the public highways; it did not seek to vest the power of operating telephone lines in telegraph companies, or vice versa. 1957 Op. Att'y Gen. p. 26.

Telegraph and telephone companies must secure permission to utilize state streambed properties.

- Former Code 1933, §§ 104-204 and 104-205 (see O.C.G.A. § 46-5-1) did not authorize telegraph and telephone companies to utilize state-owned streambed properties without securing prior permission and making just compensation. 1970 Op. Att'y Gen. No. 70-169.

RESEARCH REFERENCES

Am. Jur. 2d.

- 74 Am. Jur. 2d, Telecommunications, §§ 2, 5, 10, 11.

C.J.S.

- 86 C.J.S., Telecommunications, §§ 33, 42, 54, 55, 56.

ALR.

- Authority from public official as affecting responsibility of public service corporation for infringing property rights, 1 A.L.R. 403.

Right and duty of telephone companies to make physical connection of exchanges or lines, 11 A.L.R. 1204; 76 A.L.R. 953.

Regulations or provisions upon requiring physical connection of telephone lines, 16 A.L.R. 352.

Right to stretch overhead wires across street or highway, 54 A.L.R. 480.

Duty to furnish telegraph or telephone service to privately wired or equipped building, 56 A.L.R. 794.

Right of carrier to discriminate between telegraph or telephone companies, 60 A.L.R. 1081.

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679.

Injury to traveler from collision with privately owned pole standing within boundaries of highway, 3 A.L.R.2d 6.

Condemner's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 A.L.R.2d 722.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Liability of public utility to abutting owner for destruction or injury of trees in or near highway or street, 64 A.L.R.2d 866.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

Liability of telephone company for injury by noise or electric charge transmitted over line, 99 A.L.R.3d 628.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

Placement, maintenance, or design of standing utility pole as affecting private utility's liability for personal injury resulting from vehicle's collision with pole within or beside highway, 51 A.L.R.4th 602.

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