Georgia Public Service Com'n v. Southern Bell, s. 42025

• Court: Supreme Court of Georgia
• Writing for the Court: CLARKE
• Citation: 254 Ga. 244,327 S.E.2d 726
• Parties: GEORGIA PUBLIC SERVICE COMMISSION et al. v. SOUTHERN BELL. KIRKLAND, Consumers Utility Counsel v. SOUTHERN BELL.
• Docket Number: Nos. 42025,42026,s. 42025
• Decision Date: 02 April 1985

Page 726

327 S.E.2d 726 254 Ga. 244 GEORGIA PUBLIC SERVICE COMMISSION et al.
v.
SOUTHERN BELL.
KIRKLAND, Consumers Utility Counsel
v.
SOUTHERN BELL. Nos. 42025, 42026. Supreme Court of Georgia. April 2, 1985.

Page 727

[254 Ga. 248] Michael J. Bowers, Atty. Gen., Michael S. Bradley, Asst. Atty. Gen., for Georgia Public Service Commission et al.

George B. Haley, Kilpatrick & Cody; J. Robert Fitzgerald, Robert W. Sterrett, Jr., William Joseph Bruckner, Atlanta, for Southern Bell Telephone and Telegraph Co.

Horace F. Hartley, Atlanta, for Georgia Public Service Comm.

Deppish Kirkland, III, James S. Thomas, Jr., Atlanta, Office of Consumers' Utility Counsel.

Dellon E. Coker, Cecil O. Simpson, Jr., Regulatory Law Office, Falls Church, Va.

Michael Kurs, Atlanta, Counsel for Georgia Poverty Knights Organization, Atlanta.

Peyton S. Hawes, Atlanta, for Atlanta Alarm Assoc.

John P. Fons, Michael A. Donnella, Gene V. Coker, Atlanta, for AT & T Communications.

Debra Kaplan, Atlanta, for Georgia Hospital Assoc.

Raymond L. Baggarly, Atlanta, for Answering-Radio Communications, Inc.

[254 Ga. 244] CLARKE, Justice.

This appeal presents the question of whether the judge of a superior court is authorized to grant interlocutory injunctive relief when performing the role of a court of review in an appeal filed pursuant to the Georgia Administrative Procedures Act, OCGA 50-13-19.

The appellee, Southern Bell Telephone and Telegraph Company (hereinafter "Southern Bell"), filed an application for a rate increase of $109,325,234 annually with the Georgia Public Service Commission (hereinafter "Commission"). This application was filed on March 30, 1984. The Commission ordered a suspension of the rates for five months from April 30, 1984 and conducted evidentiary hearings as authorized by OCGA 46-2-25. By orders of September 28, 1984 and October 22, 1984, the Commission granted an increase of $34,661,000 annually.

On October 26, 1984, Southern Bell filed a petition for review of the Commission's order pursuant to OCGA 50-13-19 in the Superior Court of Fulton County. On November 5, 1984, Southern Bell filed a "Motion for Injunction Pending Trial" contending that if interim relief were not granted Southern Bell would suffer irreparable harm. By affidavit they alleged that clear errors in the Commission's order showed that Southern Bell should be entitled to collect an additional $15,701,000 pending appeal. This motion was opposed by the Commission as well as the intervenors, Consumers' Utility Counsel and Georgia Poverty Rights Organization.

The superior court entered an interlocutory injunction and found that Southern Bell would be irreparable harmed if on final appeal the court should determine that the Commission's order was arbitrary and capricious on any issue because of the utility's inability to recoup revenue lost in the interim. The court further found that subscribers could be adequately protected by a bond and refund requirement in the event the interim increased rates were determined improper in a final disposition. The court concluded that Southern Bell, by affidavit,[254 Ga. 245]

Page 728

had shown a reasonable probability of success on the merits as to four of its alleged errors by the Commission which result in increased revenues of $8,036,000 which the court ordered pending trial. The court's order also sets out a rate schedule to be applied for collecting the additional $8,036,000. The order requires that Southern Bell will refund any amounts collected pursuant to the court's order in excess of the rates finally put into effect.

The superior court issued a temporary stay and the Commission and intervenors filed an appeal and motions for stay and expedited appeal in this court. These motions were granted.

The appellants contend the superior court erred in issuing the injunction on the grounds that: (1) under an appeal filed pursuant to the APA, the statutory remedy, OCGA 50-13 et seq., is exclusive and such injunctive relief as ordered here is not available, (2) the court exceeded its authority in the appeal by substituting its judgment for that of the Commission and by actually setting rates which is constitutionally prohibited, and (3) that if the court had discretion to exercise, then its order here was an abuse of that discretion.

Southern Bell contends that the action of the superior court was authorized by the holding of this court in Southern Bell Telephone & Telegraph Co. v. Georgia Public Service Commission, 203 Ga. 832, 49 S.E.2d 38 (1948), which upheld preliminary injunctive relief and by Dept. of Natural Resources v. American Cyanamid Co., 239 Ga. 740, 238 S.E.2d 886 (1977), on the principle that equity will intervene where there is no adequate remedy at law.

Proceedings of the Public Service Commission were made subject to the Administrative...