North Georgia Elec. Membership Corp. v. City of Calhoun, A90A0694

• Decision Date: 16 April 1990
• Docket Number: No. A90A0694,A90A0694
• Citation: 393 S.E.2d 510,195 Ga.App. 382
• Parties: NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. CITY OF CALHOUN.
• Court: Georgia Court of Appeals

Page 510

393 S.E.2d 510

195 Ga.App. 382

NORTH GEORGIA ELECTRIC MEMBERSHIP CORPORATION v. CITY OF CALHOUN.

No. A90A0694.

Court of Appeals of Georgia.

April 16, 1990.

James C. Brim, Jr., Robert C. Richardson, Jr., Camilla, Kinney, Kemp, Pickell, Sponcler & Joiner, L. Hugh Kemp, Dalton, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, L. Clifford Adams, Jr., Gerald W. Bowling, Robert J. Middleton, Atlanta, for appellee.

POPE, Judge.

The parties, appellant North Georgia Electric Membership Corporation ("North Georgia EMC") and appellee City of Calhoun ("City") supply electric service to Gordon County, Georgia, and are subject to the provisions of the Georgia Territorial Electric Service Act (the Territorial Act), OCGA § 46-3-1 et seq. In 1975, pursuant to the provisions of the Territorial Act and the rules of the Georgia Public Service Commission ("PSC"), the parties entered into a Territorial Agreement, providing, inter alia, for the assignment of certain areas of Gordon County to the parties for the purpose of supplying electric service. The Territorial Agreement was subsequently approved by the PSC and incorporated as part of the territorial assignment of Gordon County. At issue here is language in the agreement which provides that "the City ... shall not extend its lines at any time ... east of I-75."

In 1983 the City began construction of a raw water in-take facility ("facility") which was located east of I-75. This facility, which provides a portion of the primary water supply for the City of Calhoun, is owned and operated by the City. North Georgia EMC has supplied electricity to the facility since its completion. However, by letter dated July 28, 1987, the City notified North Georgia EMC of its intent to "assume ... electric service" to the facility beginning March 1, 1988.

On September 2, 1987, North Georgia EMC filed a petition with the PSC contending that the City's stated intention to provide electric service to the facility was in violation of the Territorial Act and the Territorial Agreement. The case was assigned to a hearing officer and the parties filed briefs and joint stipulations of fact. The PSC hearing officer issued a decision finding that the facility was a premises devoted to public service as provided by OCGA § 46-3-8(e)(5) and concluded that, pursuant to said code section, the City was entitled to furnish electric service to the facility. The hearing officer also concluded that the action of the City in supplying electric service to its own premises did not constitute a "retail" sale of electric service and hence was not precluded by the Territorial Agreement. On April 11, 1989, the PSC denied North Georgia EMC's application for review. The Superior Court of Fulton County affirmed the decision of the PSC and this appeal followed. Held:

At issue in this case is the construction and application of various provisions of the Territorial Act and the Territorial Agreement entered into by the parties here. North Georgia EMC "while conceding that the [f]acility is the [City's] own premises devoted to public service" contends that the Territorial Agreement, specifically that portion stating "that the City ... shall not extend its lines at any time ... east of I-75," constitutes a waiver of any right the City might have had to supply electric service to the facility under the exception provided in OCGA § 46-3-8(e)(5). We disagree.

As the parties stipulated, the Territorial Agreement was entered into "[p]ursuant to the provisions of the [Territorial] Act and the rules of the [PSC]" and was made part of the territorial assignment of Gordon County. Thus the Territorial Agreement can be understood only by reference to the Territorial Act. Turning first to the definitional provisions of the Territorial Act, OCGA § 46-3-3(1) defines an "assigned area" as "an enclosed geographic area assigned to only one electric supplier by the commission or by this part, and inside which the assignee electric supplier shall have the exclusive right to extend and continue furnishing service to new premises, except as otherwise provided in this part." (Emphasis supplied.) Thus, it is apparent that the legislature...