City of Lagrange v. Public Service Com'n
| Decision Date | 13 March 2009 |
| Docket Number | No. A08A1646.,A08A1646. |
| Parties | CITY OF LaGRANGE v. GEORGIA PUBLIC SERVICE COMMISSION. |
| Court | Georgia Court of Appeals |
Friedman, Dever & Merlin, Genevieve H. Dame, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Sidney R. Barrett, Senior Assistant Attorney General, Isaac Byrd, Deputy Attorney General, Daniel S. Walsh, Assistant Attorney General; Sutherland, James A. Orr, Jennifer N. Ide, Atlanta, for appellee.
The City of LaGrange (the "City") filed a petition against Diverse Power Incorporated ("DPI") with the Georgia Public Service Commission (the "Commission"), alleging a violation of the Georgia Territorial Electric Service Act (the "Act"), codified at OCGA § 46-3-1 et seq. "The [Act] establishes a plan whereby every geographic area within the state is assigned to an electric supplier."1 "Once a service territory is assigned, an electric supplier shall have the exclusive right to extend and continue furnishing service to any new premises within that area."2 In its petition, the City alleged that pursuant to the Act, DPI was not authorized to provide electric service to the Troup County High School ball field or the newly constructed Fine Arts Auditorium (the "Auditorium") because both properties were within the City's exclusive service territory.
A hearing was held, and the hearing officer assigned to the matter by the Commission issued findings of fact and conclusions of law in an Initial Decision. The hearing officer concluded that DPI was authorized to provide electricity to the Auditorium as well as to the ball field. The City filed an application for review of the Initial Decision with the Commission, and the Commission approved and adopted the Initial Decision. The City then filed its petition seeking judicial review of the Commission's decision in the Superior Court of Fulton County, which affirmed the decision of the Commission. On appeal, the City challenges the trial court's order. We affirm.
When this Court reviews a superior court's order in an administrative proceeding, our duty is not to review whether the record supports the superior court's decision but whether the record supports the final decision of the administrative agency. We will affirm if "any evidence" on the record substantiates the administrative agency's findings of fact and conclusions of law.3
We give "deference to the factual findings of the agency ... [and we] may reject those findings only if they are clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."4 "Neither our review nor the trial court's review of the [Commission]'s decision is de novo."5
It is undisputed that pursuant to the Act, the City has provided electrical service to Troup County High School (the "School") since its construction in 1987. Patrick Bowie, who serves as the director of utilities for the City, testified that since the initial construction of the School, the City had installed additional metering points to service the School. The original meter recorded electric use by the School. Another meter was installed to service the scoreboard in 1989. The City installed a third meter to supply service to a trailer, the rates for which were calculated independently of the rates for the main School building. Bowie testified that another meter was installed to service the baseball pitching machines in 1990.
Bowie testified that the City received notice that the Auditorium was going to be built when it was invited to respond to a request for proposal ("RFP") to provide electrical service to the Auditorium during the summer of 2002. Bowie also testified that the City learned about the construction of a field house at around the same time but that the electrical service to the field house was not included in the RFP. Bowie further testified that he contacted Frank Gurley, the assistant superintendent for the Troup County school system, to inform him that the City's position was that the Auditorium was an expansion of the School and consequently, the City had the right to provide electric service to the Auditorium and that the City would not be responding to the RFP. In the meantime, the City extended a single phase electric tap and installed a meter so that the contractor could begin the project and consolidated the accounts for the various meters at the School onto one bill.
Bowie then sent a letter to Gurley in response to the RFP informing him of the single tap and outlining its intentions to meet the criteria included in the RFP. In a separate letter, Bowie explained that in spite of the City's position that it, alone, had the exclusive right to serve the Auditorium, it would match the rate offered by DPI, which had responded to the RFP. A few weeks later, Bowie learned that the Troup County Board of Education (the "Board") had awarded the contract to DPI. In response thereto, the City filed its complaint with the Commission.
Gurley testified that both the Auditorium and the athletic field house were funded by a special purpose local option sales tax. The buildings were constructed on the same property as the School, and all three buildings shared a common driveway and parking. Gurley explained that the students and teachers at the School used the Auditorium but that it was also available for use to outside groups for a fee. Regarding the costs to operate the Auditorium, Gurley stated that the operation and maintenance costs for the Auditorium were paid out of the School budget but that the janitor's salaries and the utilities were paid out of the county system budget.
Wayne Livingston, the president and CEO of DPI, explained DPI's involvement in this matter. Livingston testified that DPI began servicing the ball field lights at the School in 1996 after it received two RFPs from the Board in 1995 concerning several other schools, Calloway High and Middle and Long Cane Middle Schools. Included in DPI's response to the RFPs was an offer to donate ball field lights to Calloway High School. After DPI was awarded both contracts, the Board asked DPI to donate the ball field lights to Troup County High School instead of Calloway. Livingston testified that he knew that DPI had no territorial rights to provide service to the ball field lights, but he informed the Board that DPI would donate the lights if the City would allow DPI to install the lights and provide the electricity to the lights. Livingston maintained that DPI would not donate the lights without that agreement with the City because the lights were expensive.
Livingston recalled that he talked to Bowie about DPI servicing the ball field and that Bowie agreed that DPI could do so. Before installing the lights, DPI faxed the City a utility locate request on or about February 15, 1996, which indicated that it planned to bury a 2,000-foot underground power cable in an area on the property. Bowie testified that the City responded to the locate request and should have sent employees to locate all of the underground facilities owned by the City in that area. Livingston testified that he did not learn that the power from the transformer installed to service the ball field lights had been extended to service the concession stand and scoreboard at the ball field until he was preparing for this litigation. Because DPI had no right to provide electricity to these areas, DPI offered to transfer the service to both to the City.
George Coggin, DPI's safety coordinator, testified that his responsibilities at DPI included test and investigation, power heft and diversion, and various other types of loss control. Coggin testified that he had measured the distances between various points on the property and concluded that the School and the Auditorium were 176 feet apart at their closest points; that the distance between the City's meter and DPI's transformer was 213 feet; that a person would drive by DPI's transformer to reach the City's meter; and that the distance between the closest ball field light and the City's meter was 109 feet. Coggin also testified that the equipment installed by DPI at the School included 2,000 feet of underground primary cable, one cabinet, a terminating cabinet, a pad-mount transformer serving the ball field and another run of underground cables and a transformer that served the Auditorium as well as an overhead line to the front of the property; and that the cost to install the poles and lights was approximately $25,000 in addition to the equipment cost of $10,000. Coggin stated that DPI currently services the Auditorium and bills the Board for that service.
1. In its first enumerated error, the City argues that the Auditorium was an expansion of the premises; thus, it remains within the exclusive service territory of the City and could not be served by DPI. 6 Because the evidence supports the Commission's findings, this enumerated error fails.
[T]he [Commission], as the agency charged with oversight and supervision of electric power companies in this State, OCGA [§] 46-2-20(a), including the enforcement and administration of the ... Act, is entitled to great deference in its interpretation of the Act. The administrative interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight.7
The Commission relies on OCGA § 46-3-8(a) in support of its decision, which allows a consumer to choose an electric supplier different from the assigned supplier where service is furnished to one or more new premises. However, the City contends that ...
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