GA Code § 46-2-25 (2021)
2021 Georgia Code|Title 46 - Public Utilities and Public Transportation|Chapter 2 - Public Service Commission|Article 2 - Jurisdiction, Powers, and Duties Generally|§ 46-2-25. Procedure for Changing Any Rate, Charge, Classification, or Service; Recovery of Financing Costs

  No person, firm, or corporation (referred to in this Code section as a "utility") subject to the jurisdiction of the commission shall make any change in any rate, charge, classification, or service subject to the jurisdiction of the commission, or in any rule or regulation relating thereto, except after 30 days' notice to the commission and to the public, unless the commission otherwise orders, or unless the commission has previously authorized or approved the change. Such notice shall be given by filing with the commission and keeping open for public inspection new schedules stating plainly the changes to be made in the schedules then in force and the time when the changes will go into effect. The commission, for good cause shown, may allow changes to take effect without requiring the 30 days' notice by an order specifying the changes to be made, the time when they shall take effect, and the manner in which they shall be filed and published.   Whenever any new schedule is filed pursuant to subsection (a) of this Code section, the commission shall have authority, either upon written complaint or upon its own initiative without complaint, at once, and, if it so orders, without answer or formal pleading by the utility but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service. Pending such hearing and the decision thereon, the commission, upon filing with such schedule and delivering to the utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a period longer than five months beyond the time when it would otherwise go into effect, provided that the commission may apply to the Superior Court of Fulton County for an extension of such period, as provided for in Code Section 46-2-57. After such hearings as are required, whether they are completed before or after the rate, charge, classification, or service goes into effect, the commission may make such orders as are proper with reference thereto within the authority vested in the commission. The commission is empowered to reduce or revoke any such suspension with respect to all or any part of such schedule. If the proceeding has not been concluded and an order not made at the expiration of the suspension period, the proposed change of rate, charge, classification, or service shall go into effect at the end of such period; but in case of a proposed increased rate or charge, the commission shall by order require the interested utility to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid; and upon completion of the hearing and the rendering of a decision, the commission shall by further order require such utility to refund, with interest at the maximum legal rate, in such manner as the commission may direct, such portion of such increased rates or charges as by its decision shall be found not justified. Any portion of such refunds not thus refunded to patrons or customers of the utility shall be refunded or disposed of by the utility as the commission may direct, provided that no such funds shall accrue to the benefit of the utility. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the utility, and the commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.   Before any increased rate or charge shall go into effect without the approval of the commission, the commission shall by order require the interested utility to file with the commission a bond written by a surety who is approved by the commission and who is authorized to transact business in this state. The bond shall be fixed by the commission in an amount not to exceed $250,000.00. The bond shall be payable to the Governor and conditioned upon the faithful performance of the requirements of the refund order entered by the commission, the requirements of this Code section, and the requirements of the rules and regulations of the commission.   Any action taken by the commission under this Code section shall be reduced to writing by the commission and signed by the chairman and secretary thereof. All such actions and orders shall be effective from the date such actions are reduced to writing and are signed as provided by this subsection. No such action or order of the commission may be given retroactive effect. A full and complete record shall be kept of the votes taken in connection with any such action, said record to be entered upon the official minutes of the commission.   Nothing in this Code section shall be construed as limiting the authority granted to the commission by Code Sections 46-2-20 and 46-2-23 to initiate an earnings review hearing.    (c.1) (1)Notwithstanding any provision to the contrary, a utility shall recover from its customers, as provided in this subsection, the costs of financing associated with the construction of a nuclear generating plant which has been certified by the commission prior to January 1, 2018. The financing charges shall accrue on all applicable certified costs as they are recorded in the utility's construction work in progress accounts pursuant to generally accepted accounting and regulatory principles as approved by the commission. The financing costs shall be based on the utility's actual cost of debt, as reflected in its annual surveillance report filed with the commission, and based on the authorized cost of equity capital and capital structure as determined by the commission when setting the utility's current base rates. These financing costs shall be recovered from each customer through a separate rate tariff and allocated on an equal percentage basis to standard base tariffs which are designed to collect embedded capacity costs. The commission shall retain the discretion to consider the effect of this tariff when setting the level of any senior or low income assistance it may authorize; provided, however, that the income qualification for such assistance shall be 200 percent of the federal poverty level.   The commission shall have the authority to authorize any specific accounting treatment for the costs recovered pursuant to this subsection and to review whether costs recovered pursuant to this subsection are being properly recorded.   (A) For any nuclear generating plant certified by the commission on or after July 1, 2009, the utility may begin recovering the costs of financing the construction of the nuclear generating plant at any time within five years after the date on which such nuclear generating plant is certified. Any such costs incurred between the time the plant is certified and the time the utility begins recovering its cost shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following the date on which the utility begins recovering the costs of financing the construction and shall be recovered with one-fifth of those deferred costs being recovered each year for five years.   For any nuclear generating plant certified by the commission on or after January 1, 2009, and before July 1, 2009, the utility shall begin recovering on January 1, 2011, any costs of financing the construction of the nuclear generating plant. Any such costs incurred prior to January 1, 2011, shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following January 1, 2011, and shall be recovered with one-fifth of those deferred costs being recovered each year for five years.   The costs recoverable pursuant to this subsection shall be recalculated and the level of the charges reset annually if necessary to reflect the level of construction costs expected to be incurred in the next 12 months consistent with the certificate and the financing costs expected to be incurred for the next 12 months together with a balanced accounting of actual expenditures and financing costs incurred in the preceding period.   The financing costs associated with a nuclear generating plant which has been certified by the commission shall continue to be recovered between the time that the generating plant begins commercial operation and until the next general rate case filed by the utility becomes effective, at which time the financing costs being collected for any generating plants which are then in commercial operation shall be included in the general revenue requirements of the utility and collected in the general base rates of the utility.   (Code 1933, § 93-307.1, enacted by Ga. L. 1972, p. 137, § 1; Ga. L. 1976, p. 419, § 1; Ga. L. 2002, p. 475, § 2; Ga. L. 2009, p. 39, § 2/SB 31; Ga. L. 2018, p. 1085, § 1/SB 355.)    The 2002 amendment,  effective April 25, 2002, added subsection (e).    The 2009 amendment,  effective April 21, 2009, added subsection (c.1).    The 2018 amendment,  effective July 1, 2018, added "prior to January 1, 2018" at the end of the first sentence of paragraph (c.1)(1).   Cross references.   - Authority of General Assembly regarding regulation of public utility rates, Ga. Const. 1983, Art. III, Sec. VI, Para. V.   Prohibition against gratuities, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.   Editor's notes.   - Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Natural Gas Consumers' Relief Act.'"   Ga. L. 2009, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Nuclear Energy Financing Act.'"   Law reviews.   - For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 285 (2002).   JUDICIAL DECISIONS   Effect of 1976 amendment to section.    - The 1976 amendment to former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25), which added subsection (d), was a recognition by the legislature that section prior to amendment did not prohibit the effectuating of rates according to the date of billing, which would therefore cover some electricity used prior to the date of the effectuating order. Moore v. Georgia Pub. Serv. Comm'n, 242 Ga. 182, 249 S.E.2d 549 (1978).   Construction with other statutes.    - O.C.G.A. § 46-2-25 supercedes contrary provisions of the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-17, with regard to the judicial review of decisions made by the Georgia Public Service Commission. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).   Entitlement to lower rate must be shown to challenge increase on constitutional grounds.   - Utility customers must show they have a legal entitlement to or a vested right in the utility rates being charged before any proposed increase, before they can claim any property rights protected by the United States Constitution. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).    Utility customers have no vested rights in fixed utility rates.  Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).   Utility customers have no property interest in rate increases.   - Utility customers have no sufficient property interest in given utility rate increase to invoke procedural protections of due process clause of U.S. Const., Amend. 14. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).   Collective ratemaking activities carried on by "rate bureaus" immune from antitrust liability.    - Collective ratemaking activities carried on by "rate bureaus" composed of motor common carriers operate in several states, although not compelled by the states involved, "clearly articulated state policy" and thus were immune from antitrust liability. Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L. Ed. 2d 36 (1985).   Recovery of costs of demand-side programs.    - The commission had authority under O.C.G.A. § 46-3A-9 to allow a utility to recover the costs of demand-side energy conservation programs and interruptible service credits through riders or surcharges outside of a general rate case and the test year statute. Georgia Power Co. v. Georgia Indus. Group, 214 Ga. App. 196, 447 S.E.2d 118 (1994).   Order addressing disposition of overearnings authorized.    - Neither the Public Service Commission's determination that Tier 2 local exchange companies' return on equity earnings exceeded that authorized, nor its order for the application of over-earnings to reduce intrastate access rates violated either subsection (d) of O.C.G.A. § 46-2-25, which prohibits rate-making orders with retroactive effect, or O.C.G.A. § 46-5-166(f)(2), regarding adjustments to intrastate access rates. Georgia PSC v. ALLTEL Ga. Communs. Corp., 244 Ga. App. 645, 536 S.E.2d 542 (2000).   What constitutes a rate case.    - A hearing before the commission to consider a utility's proposed alternate rate plan that did not recommend or request any rate changes for customers did not constitute a rate case requiring a full hearing. Georgia Public Serv. Comm'n v. Campaign for a Prosperous Ga., 229 Ga. App. 28, 492 S.E.2d 916 (1997).   Sufficiency of findings of fact.    - Where the Public Service Commission granted a rate increase, but disallowed some of the utility company's costs in calculating the rate base for a fair increase because it concluded that some of the costs were the result of the company's imprudent management of the project, the agency's decision was within its authority, and was supported by the facts. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990), cert. denied, 196 Ga. App. 908, 396 S.E.2d 562 (1990).   Court lacked jurisdiction to hear utility company's ratemaking appeal from an interim order.    - Trial court erred by affirming a decision of the Georgia Public Service Commission (PSC) in a ratemaking appeal filed by a gas distribution company and by denying the PSC's motion to dismiss the company's appeal; the trial court lacked jurisdiction to hear the company's petition for judicial review since one order appealed from was an interim order, and not a final order, and a voice note appealed from was not even a decision subject to review. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).    Natural gas distribution company could not challenge a rate change ruling by the Georgia Public Service Commission (PSC) because the order was not a final order under O.C.G.A. § 46-2-25(d) as the language indicated that it was only an interim decision; § 46-2-25 did not mandate the entry of a final order at the end of the six-month "file and suspend" period, and O.C.G.A. § 50-13-17(b) of the Administrative Procedure Act did not prevail over the more restrictive requirements imposed by § 46-2-25(d) as to the manner in which the PSC rendered a decision. Atmos Energy Corp. v. Ga. PSC, 285 Ga. 133, 674 S.E.2d 312 (2009).   Constitutional challenges to statute could not be considered on appeal.    - Taxpayers constitutional challenges to the Georgia Nuclear Energy Financing Act, O.C.G.A. § 46-2-25(c.1), could not be considered on appeal because the trial court declined to reach the merits of the constitutional challenges and merely ruled that the taxpayers lacked standing to raise the claims; because the taxpayers neither enumerated as error the ruling of the trial court that the taxpayers lacked standing to raise a constitutional challenge to § 46-2-25(c.1) nor provided any argument or citation of authority with respect to that ruling, it was not made an issue in the appeal and would not be considered. Fulton County Taxpayers Found., Inc. v. Ga. PSC, 287 Ga. 876, 700 S.E.2d 554 (2010).    Cited in Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 231 Ga. 339, 201 S.E.2d 423 (1973); Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975); Bryan v. Georgia Pub. Serv. Comm'n, 238 Ga. 572, 234 S.E.2d 784 (1977).   OPINIONS OF THE ATTORNEY GENERAL   Companies within scope of section.    - Common carriers and transportation companies as well as power utilities are covered by former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25). 1972 Op. Att'y Gen. No. 72-34.   Limitation on suspension of schedule by commission.   - Commission may not suspend schedule beyond five months, unless a utility by its own action manifests an intent to withdraw or extend the effective date of a scheduled increase. 1973 Op. Att'y Gen. No. 73-70.   Section is exclusive method for suspending tariff revision implementation.    - Former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25) was exclusive method by which commission may suspend implementation of tariff revision. 1973 Op. Att'y Gen. No. 73-6.   Commission's responsibility not altered by conditional approval of tariff amendment.    - Conditional approval by the commission of tariff amendment during 30-day period provided by former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25) did not alter substantive responsibility and authority of the commission. 1973 Op. Att'y Gen. No. 73-6.   Implemented tariff amendment not to be suspended during subsequent examination.   - A tariff amendment which has been implemented by a utility, either by virtue of the expiration of the 30-day period without commission action or by virtue of such conditional approval by the commission during that period, may not be later suspended by the commission during subsequent examination pending a final determination by the commission. 1973 Op. Att'y Gen. No. 73-6.   Later examination possible even after decision not to suspend tariff revision.    - If the commission in the exercise of its discretion determines that a tariff revision should not be suspended under former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25), the commission was not foreclosed from later examining the tariff provision, on its own initiative or upon the filing of a complaint. 1973 Op. Att'y Gen. No. 73-6.   Terminating utility service to persons outside municipality.   - A municipality which provides utility services to persons located outside the limits of the municipality may terminate such utility services in accordance with the provisions of Article 2 of the UCC. 1987 Op. Att'y Gen. No. U87-27.   RESEARCH REFERENCES   C.J.S.   - 73B C.J.S., Public Utilities, §§ 15, 18-22, 45-49, 53-55.   ALR.    - Power of federal government over intrastate rates, 14 A.L.R. 454; 22 A.L.R. 1100.    Power of Public Service Commission to increase franchise rates, 28 A.L.R. 587; 29 A.L.R. 356.    Validity, construction, and effect of provisions for the appropriation of excess income of public utility, 33 A.L.R. 488.    Service contract by public utility in consideration of conveyance of property by individual or private corporations as affected by public utility acts, 41 A.L.R. 257.    Power of state or municipality to fix minimum public utility rates, 68 A.L.R. 1002.    Profit factor in determining rates for municipally owned or operated public utility, 90 A.L.R. 700.    Allowance in fixing rates of public utility for depletion or amortization in respect of natural resources, 91 A.L.R. 1413.   Right of customers of public utility with respect to fund representing a refund from another supplying utility upon reduction of latter's rates, 18 A.L.R.2d 1343.   Variations of utility rates based on flat and meter rates, 40 A.L.R.2d 1331.   Validity of "fuel adjustment" or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers, 83 A.L.R.3d 933.   Advertising or promotional expenditures of public utility as part of operating expenses for ratemaking purposes, 83 A.L.R.3d 963.   Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.