Dixie Elec. Membership Corp. v. Louisiana Public Service Com'n

• Decision Date: 28 November 1983
• Docket Number: No. 83-CA-1196,83-CA-1196
• Citation: 441 So.2d 1208
• Parties: DIXIE ELECTRIC MEMBERSHIP CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 1208

441 So.2d 1208

DIXIE ELECTRIC MEMBERSHIP CORPORATION v.LOUISIANA PUBLIC SERVICE COMMISSION.

No. 83-CA-1196.

Supreme Court of Louisiana.

Nov. 28, 1983.

John Schwab, Baton Rouge, for plaintiff-appellant.

Marshall B. Brinkley, Eugene R. Groves, Baton Rouge, for defendant-appellee.

BLANCHE, Justice.

This case and its companion case, Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1212(La.1983), involve territorial disputes between Dixie Electric Membership Corporation(Dixie) and Gulf States Utilities Company(Gulf States).In the instant case, at the request of the developer, Dixie built an electric distribution line to service Round Oak Subdivision in East Baton Rouge Parish, Louisiana.Gulf States filed a complaint with the Louisiana Public Service Commission(Commission) alleging that Dixie's action was unlawful, requesting that Dixie be ordered to remove the line, and requesting that Gulf States be ordered the exclusive right to service the subdivision.The Commission upheld Gulf States' complaint and awarded Gulf States the exclusive right to service the entire subdivision.On the basis of new evidence submitted, the district court remanded the case to the Commission for reconsideration.La.R.S. 45:1194.The Commission affirmed its original order and the district court affirmed the Commission's order.Dixie now appeals to this court.La. Const. art. IV, § 21(E);La.R.S. 45:1192.

Round Oak Subdivision adjoins Jefferson Highway on its southwest corner.The subdivision's north boundary is located approximately 663 feet south of Doyle Road in East Baton Rouge Parish.On June 7, 1976, Dixie entered into an agreement with the developer of the subdivision to provide underground electric distribution service.According to the contract, the developer would not be charged for the increased costs of underground, as opposed to overhead, service.At the time, Dixie maintained a three phase distribution line along Doyle Road, approximately 663 feet north of the subdivision.Gulf States had a three-phase distribution line along Jefferson Highway, across the street from the southwest corner of the subdivision.Additionally, Gulf States had run a single-phase line across Jefferson Highway prior to 1963 to service a house which was located on land now within the boundary of the subdivision.Service to this house was disconnected at the owner's request in May of 1978, however the line remains energized.The testimony of both parties reflects that three-phase service is needed to service the entire subdivision.

Gulf States' argument to the Commission protesting Dixie's action was three-fold.Gulf States contended: first, that Dixie violated a general order of the Commission by extending services when Gulf States had "electric distribution facilities in the immediate vicinity of Round Oak Subdivision which would allow the most economic extension" of electric services to that area; second, that Dixie's action was "an uneconomic and duplicative construction of facilities in violation of La.R.S. 45:123;" and third, that Dixie engaged in a promotional practice that is proscribed by a general order of the Commission when Dixie did not charge the developer for the installation costs of the underground line.The Commission agreed with Gulf States and ordered that Gulf States service Round Oak Subdivision.

Under our ruling in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, 309 So.2d 287(La.1975), Gulf States may not claim the exclusive right to provide services to the entire subdivision based upon La.R.S. 45:123 by contending that they operate an electric line within 300 feet of a small portion of that subdivision.¹Thus, any reliance by the Commission on La.R.S. 45:123 in their decision is misplaced.La.R.S. 45:123 would, however, prohibit Dixie from servicing points of connection within 300 feet of existing Gulf States electric lines such as the three-phase distribution line along Jefferson Highway and any currently "operating"² single-phase lines located on or near subdivision property.

The claims of Gulf States with respect to alleged promotional practices of Dixie are equally without merit.On March 12, 1974, the Commission issued General Order "In re: Promotional Practices" which implemented an order issued by the Commission on December 18, 1973.This general order prohibits a public utility from giving a preference or prize "for the purpose of enticing" someone to deal with that utility in preference to the service of any other public utility."³This court has held that the above general order is not applicable to an action which is a part of a comprehensive service policy when that policy is applied uniformly, even in areas where there is no competition for customers.Louisiana Power and Light Company v. Louisiana Public Service Commission, 392 So.2d 658(La.1980);Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497(La.1979).

The parties in this case had entered into a stipulation before the Commission whereby, in part, each agreed that:

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Number 4.Prior to June, 1977, Dixie Electric Membership Corporation did not charge developers of subdivisions for the difference between the anticipated cost of installation and maintenance of underground electric service facilities and the anticipated cost of installation and maintenance of overhead electric facilities.

Number 5.Since June, 1977, Dixie Electric Membership Corporation's policy has been to charge all developers of subdivisions making initial inquiries after that date for the difference between the anticipated cost of installation and maintenance of underground electric service facilities and the anticipated cost of overhead electric facilities.

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The agreement between Dixie and the subdivision developer was signed on June 7, 1976, during which time the uniform policy of Dixie was to offer the underground service at no additional cost.Thus, the General Order of March 12, 1974, "In re: Promotional Practices", does not apply to this case.

In general, however, an order of the Public Service Commission should not be overturned on review unless it is shown to be arbitrary, capricious or abusive of its authority.The burden of showing that an order is arbitrary, capricious or abusive of the Commission's authority is on the party attacking that order.Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497(La.1979);Louisiana Power and Light Company v. Louisiana Public Service Commission, 392 So.2d 658(La.1980).The Commission is an expert...