Excelsior Electric Membership Corp. v. Georgia Public Service Commission

745 S.E.2d 870, 322 Ga. App. 687, 2013 Fulton County D. Rep. 2323, 2013 WL 3358024, 2013 Ga. App. LEXIS 592
CourtCourt of Appeals of Georgia
DecidedJuly 5, 2013
DocketA13A0154
StatusPublished
Cited by8 cases

This text of 745 S.E.2d 870 (Excelsior Electric Membership Corp. v. Georgia Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Excelsior Electric Membership Corp. v. Georgia Public Service Commission, 745 S.E.2d 870, 322 Ga. App. 687, 2013 Fulton County D. Rep. 2323, 2013 WL 3358024, 2013 Ga. App. LEXIS 592 (Ga. Ct. App. 2013).

Opinion

ANDREWS, Presiding Judge.

This case is before us for the second time after remand to the Superior Court for a determination of whether one of Excelsior Electric’s arguments on appeal was properly raised before the Public Service Commission (PSC). The Superior Court determined that the argument was not raised, and Excelsior appeals that determination as well as the original judgment. After reviewing the record, we conclude that there was no error and affirm.

The underlying facts are undisputed and are set out in detail in the Hearing Officer’s Decision. The premises at issue, the Campus Club Apartments in Statesboro, is located within Excelsior’s assigned service territory and consists of multiple detached buildings. The premises had a connected electrical load over 900 kilowatts at the time of initial full operation, qualifying as a customer choice load under the “large load exception” provision which states that an [688]*688electric supplier other than the primary supplier may provide 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. . . .

OCGA § 46-3-8 (a).

Under this large load exception, the owner of the complex selected Georgia Power as its electrical supplier, and Georgia Power began servicing the premises in December 2001. The developer and original owner, Stokes Property Company, continued single-metered service during the entire time of its ownership, through August 2004, when the complex was sold. The new owners eventually installed meters for each apartment unit, assessing utility service fees to each unit, while Georgia Power continued to serve the complex through a single meter.

Excelsior filed a complaint alleging that the conversion of the complex’s metering from a single master meter to individual meters at each apartment, coupled with individual and independent calculation of charges for each apartment’s electrical service, eliminated Georgia Power’s right to serve the apartment complex under the large load exception because none of the individually metered apartments had a connected load exceeding 900 kilowatts. Therefore, Excelsior requested that the PSC find that Georgia Power was in violation of the Territorial Act; that Excelsior was the lawful supplier of electricity to the apartment complex; and, order Georgia Power to disconnect and transfer service.

Georgia Power moved to dismiss, or in the alternative, for summary judgment, arguing that, having lawfully established service to a premises, it may continue serving the premises under OCGA § 46-3-8 (b), the “grandfather clause.” That Code section provides:

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 [689]*689which 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.

OCGA § 46-3-8 (b).

Excelsior responded and filed its own motion for summary judgment, contending that under Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 705 (544 SE2d 158) (2001), the aggregation of separately metered apartments by means of a master meter would not meet the large load exception.

The Hearing Officer determined that, as defined by the Georgia Territorial Electric Service Act (the “Territorial Act”), OCGA § 46-3-3 (6), “[i]t is clear that by law the individual units at Campus Club are each new premises.”1 The Hearing Officer concluded, however, that, under the grandfather clause, Georgia Power had the right to continue service to the apartments.

Excelsior petitioned for a full commission review of the Hearing Officer’s decision. After a hearing, the PSC issued an order adopting the Hearing Officer’s Initial Decision, stating that it agreed that the individual units at Campus Club are each new premises and concluding that the grandfather clause allowed Georgia Power to continue service to the apartments because there was no authority for determining that a lawful extension of service could be undone by a subsequent metering change occurring years later. Accordingly, there was no basis under the Territorial Act upon which to require Georgia Power to relinquish service to the apartment complex.

Excelsior petitioned the Superior Court for judicial review of the PSC’s final decision. The Superior Court held that “Respondent [the PSC] properly applied the ‘grandfather clause’establishedby O.C.G.A. § 46-3-8 (b) which is dispositive of the issue in dispute.”

[690]*690Excelsior then filed its first appeal in this Court. Among its arguments was the claim that Georgia Power was not entitled to the protection of the grandfather clause because it no longer provides “retail electric service” as defined by the Territorial Act. Excelsior pointed to the relevant portion of the grandfather clause which states that although the supplier has the exclusive right “to continue serving any premises lawfully served by it,” the grandfather clause only protects the utility that provides “service,” defined in OCGA § 46-3-3 (9) as retail electric service and not wholesale service and sales for resale. Excelsior contended that Georgia Power’s service to the complex was now wholesale or sale for resale and therefore was excluded.

Georgia Power and the PSC argued that this issue was waived because it was not raised during the administrative proceedings as required by OCGA § 50-13-19 (c).2 This Court found that although Excelsior had “briefly” brought up the retail electric service or sale for resale argument before the PSC Hearing Officer, the Hearing Officer had not explicitly ruled on the issue; furthermore, Excelsior did not raise the issue in its brief in support of its petition for full Commission review of the Hearing Officer’s Initial Decision, nor in its reply brief, and the PSC had not made any explicit finding on the issue.

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745 S.E.2d 870, 322 Ga. App. 687, 2013 Fulton County D. Rep. 2323, 2013 WL 3358024, 2013 Ga. App. LEXIS 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/excelsior-electric-membership-corp-v-georgia-public-service-commission-gactapp-2013.