MUNICIPAL ELEC. AUTHORITY v. GEORGIA PSC, A99A1152.

• Court: United States Court of Appeals (Georgia)
• Citation: 525 S.E.2d 399,241 Ga. App. 237
• Docket Number: No. A99A1152.,A99A1152.
• Parties: MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA v. GEORGIA PUBLIC SERVICE COMMISSION et al.
• Decision Date: 16 November 1999

525 S.E.2d 399
241 Ga. App. 237

MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA
v.
GEORGIA PUBLIC SERVICE COMMISSION et al

No. A99A1152.

Court of Appeals of Georgia.

November 16, 1999.

Reconsideration Denied December 3, 1999.

Certiorari Denied May 1, 2000.

525 S.E.2d 400

Alston & Bird, Peter M. Degnan, L. Clifford Adams, Jr., Atlanta, for appellant

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Thomas K. Bond, Assistant Attorney General, for appellees.

BARNES, Judge.

The Municipal Electric Authority of Georgia ("MEAG") appeals a superior court decision affirming an order of the Georgia Public Service Commission ("PSC"). MEAG contends that it has the legal authority to apply to the PSC for a certificate to offer telecommunications services to the public for hire, either by the terms of its enabling statute or by Federal Telecommunications Act preemption. We disagree and affirm the superior court's opinion.

MEAG is a public corporation created by the legislature "to function without profit in developing and promoting for the public good in this state adequate, dependable, and economical sources and supplies of bulk electric power and energy...." OCGA § 46-3-110. Under the Georgia Code, MEAG is to acquire, construct, operate, and maintain electric generation and transmission facilities. OCGA § 46-3-125.

In December 1997, the Superior Court of Fulton County confirmed and validated MEAG's revenue bonds totaling 35 million, to be used to fund the construction and acquisition costs of an internal telecommunications system. MEAG sought to build this internal system to improve its operations in various ways, such as adding the ability to monitor system conditions and control system devices remotely, isolate faults within a fraction of a second, and manage [241 Ga. App. 238] energy resources. The superior court also validated MEAG's telecommunications project contracts with 31 municipalities and Crisp County but specifically declined to address whether MEAG had the legal right to offer telecommunications services to the public for hire. Such sales require a certificate from the PSC, the court concluded.

525 S.E.2d 401

Before the superior court's December 1997 ruling, MEAG petitioned the PSC for a declaratory ruling that it is authorized by the MEAG Act, the Georgia Telecommunications & Competition Development Act (OCGA § 46-5-162(17)), and the Federal Telecommunications Act (47 USC § 151 et seq.) to apply for a certificate of authority to provide telecommunications services to the public. The commission granted motions to intervene by BellSouth and the Cable TV Association of Georgia. After a two-day evidentiary hearing, the majority of commissioners concluded in March 1998 that MEAG "did not have the authority to apply for or obtain a certificate of authority to offer or provide telecommunications services to the public for hire." The commission made three specific findings of fact and conclusions of law in its order: (1) MEAG can exercise only those powers that the legislature expressly or implicitly gave it, and those powers do not include offering telecommunications services to the public for hire; (2) the Georgia Telecommunications Act does not give MEAG "the authority to deviate from the purpose for which it was created" in order to offer telecommunications services to the public for hire "or otherwise to compete in the telecommunications industry"; and (3) the Federal Telecommunications Act does not preempt state law to permit MEAG to offer telecommunications services to the public

MEAG petitioned the Superior Court of Fulton County for judicial review of the PSC's decision pursuant to OCGA § 50-13-19,. The superior court affirmed, noting that public corporations

can exercise only such powers as are conferred on them by law, and a grant of power to such corporations must be strictly construed.... The policy that is promoted by this rule avoids competition between private industry and a public corporation in a field that was not addressed as a need by the enabling statute.

The superior court found that the specific powers granting MEAG the ability to compete as a state authority in the private energy sector did not encompass telecommunications services, concluding that "[t]o allow MEAG to enter this separate industry would be opening up a `[P]andora's box' which the General Assembly could not have intended with the passage of this Act."

1. The superior court reviews the PSC's order to determine whether its findings of fact are supported by any evidence. Sawyer v. [241 Ga. App. 239] Reheis, 213 Ga.App. 727, 728-729(1), 445 S.E.2d 837 (1994). As we then review the superior court's...