Excelsior Electric Membership Corp. v. Georgia Public Service Commission
322 Ga. App. 687
| Ga. Ct. App. | 2013Background
- Campus Club Apartments in Statesboro originally had a single master meter and a connected load >900 kW, qualifying under the Territorial Act’s "large load exception."
- Owner selected Georgia Power under that exception; Georgia Power began service in Dec. 2001 and continued during ownership changes.
- New owners later installed individual apartment meters and billed tenants separately, while Georgia Power continued serving via the original single meter.
- Excelsior filed with the PSC claiming the metering conversion defeated Georgia Power’s large-load entitlement and that Excelsior (the competitive supplier) was the lawful supplier.
- The PSC and Hearing Officer found each apartment is a "new premises" but held Georgia Power could continue serving under the grandfather clause (OCGA § 46-3-8(b)); Superior Court affirmed.
- Excelsior appealed, raising (among other things) that Georgia Power’s service had become a sale for resale (wholesale) and thus fell outside the grandfather clause; the Court remanded to resolve whether that argument was waived administratively. The remand court found the sale-for-resale argument was not properly raised before the PSC; the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether individual meters converted the complex into separate "premises" that defeat the large-load exception | Conversion to individual meters made each apartment a "new premises," so complex cannot count as one premises for the 900 kW exception | Even if units are new premises, Georgia Power lawfully served the premises earlier and is protected by the grandfather clause | Court: Units may be new premises, but grandfather clause permits continuation of service; Sawnee not controlling here |
| Whether Georgia Power’s continued service is barred because it is a "sale for resale" (wholesale) rather than retail service | Sale-for-resale/wholesale now occurs, so grandfather clause (which protects retail service) does not apply | No evidence Georgia Power is selling at wholesale or owner is reselling; issue was not properly raised before the PSC | Court: Excelsior waived this argument by failing to present it in writing to the PSC; remand ruling affirmed |
| Whether Sawnee prohibits grandfather protection when metering changes after selection | Sawnee requires aggregation test at time of selection; plaintiff asserts it bars grandfather protection when metering later separates units | Defendants: Sawnee applied to supplier selection timing; it does not mandate discontinuation of previously lawful service under the grandfather clause | Court: Sawnee is inapplicable to undo a lawful extension of service protected by grandfather clause |
| Standard of review for agency factual findings | N/A (procedural) | N/A (procedural) | Court emphasizes deferential administrative-review standard: courts may not overturn PSC findings unless clearly erroneous or arbitrary |
Key Cases Cited
- Sawnee Elec. Membership Corp. v. Ga. Pub. Svc. Comm., 273 Ga. 702 (2001) (separately metered units billed independently cannot be treated as one premises for supplier-selection analysis)
- Cerulean Cos. v. Tiller, 271 Ga. 65 (1999) (parties must raise issues and exhaust administrative remedies before judicial review)
- Ga. Pub. Svc. Comm. v. Southern Bell, 254 Ga. 244 (1985) (reviewing courts limited to objections presented to the agency; agency is finder of fact)
- City of LaGrange v. Ga. Power Co., 185 Ga. App. 60 (1987) (administrative interpretation of the Territorial Act is entitled to great deference)
- Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572 (1990) (failure to raise issue before the PSC precludes later judicial consideration)