Certificates of authority

(a)(1) No person other than a gas company or a regulated provider shall sell or offer to sell in intrastate commerce to any retail customer who receives primarily firm service within this state any commodity sales service or distribution service without first obtaining a certificate of authority from the commission covering the territory where such retail customer is located. Notwithstanding any provision of law to the contrary, any person selected by an electing distribution company, a certificated marketer, or a regulated provider may perform billing and meter reading services on behalf of such entity without first becoming certificated in accordance with the provisions of this Code section, provided that a certificated marketer or a regulated provider also submits the meter reading data so obtained to the electing distribution company in a timely manner. 380 Page: 381 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:38 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-153 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-153 (2) The commission shall have the authority to issue multiple certificates of authority with respect to a particular territory upon a showing that the applicant: (A) Possesses satisfactory financial and technical capability to render the certificated service; (B) Has a sufficient gas supply to meet the requirements of such service; and (C) Will offer such service pursuant to rules and contract terms which the commission finds economically viable for the territory which the marketer proposes to serve. (3) A showing of public convenience and necessity is not a condition for the issuance of a competing certificate of authority. (4) A certificate of authority shall authorize the marketer to use intrastate capacity available to it from a gas company to provide interruptible distribution service when not required by the marketer to provide firm distribution service. (b) A person who seeks a certificate of authority shall make an application to the commission which contains the information required by this Code section. (c)(1) No later than December 31, 1997, the commission shall promulgate regulations describing the information to be included in an application for certification under this Code section and the criteria it will use in determining an applicant’s financial and technical capability. Such criteria shall seek to ensure the reliability and high quality of gas service provided to consumers, while imposing no unnecessary barriers to entry, including without limitation administrative barriers to entry. (2) No such application shall be filed with respect to territory covered by the certificate of public convenience and necessity of a gas company until such gas company has filed a notice of election pursuant to the provisions of subsection (a) of Code Section 46-4-154. (3) Until the expiration of 15 days following the effective date of rates approved by the commission pursuant to Code Section 46-4-154 for an electing distribution company, the commission shall not approve or disapprove any complete application for a certificate of authority covering territory certificated to such electing distribution company which application is filed prior to such expiration date, and all applications for certificates of authority filed prior to such expiration date shall be considered by the commission simultaneously. (4) Within 60 days following such expiration date, the commission shall conduct a public hearing or hearings on all complete applications filed prior to such expiration date. Within 90 days following such 381 Page: 382 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:38 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-153 PUBLIC UTILITIES, ETC. 46-4-153 expiration date, the commission shall issue its orders approving or disapproving each of such applications for a certificate of authority. (5) The commission shall conduct a public hearing on any application for a certificate of authority filed subsequent to such expiration date within 60 days following the filing of such application; and within 90 days following such filing, the commission shall issue its order approving or disapproving such application. (d) Any certificate of authority issued by the commission is subject to revocation, suspension, or adjustment where the commission finds upon complaint and hearing that a marketer has failed repeatedly or has failed willfully to meet obligations to its retail customers and consumers which are imposed by this article, regulations issued pursuant to this article, or the marketer’s certificate of authority; has engaged in unfair competition; or has abused its market position. (e) The commission may deny an application upon a showing that the applicant or anyone acting in concert with the applicant has a history of violations of laws, rules, or regulations designed to protect the public. The commission may revoke any certificate issued pursuant to this Code section where it finds that the marketer or anyone acting in concert with the marketer has such a history, that any information on the application was falsified or forged, that the marketer has acted unlawfully to the detriment of the public while certificated, or for any other good and valid reason where activities of the marketer are serving or could serve to mislead, deceive, or work a fraud upon members of the public. The commission shall be authorized to adopt rules and regulations to implement this subsection. In any case where it is asserted in good faith that the marketer is, has been, or may be about to become involved in activities described in this subsection, any deadline imposed under this Code section regarding the granting of certification shall be null and void until such time as such assertions can be addressed. (f ) All gas marketers are required to continue to possess financial and technical capability to render service and offer service pursuant to contractual terms and conditions the commission from time to time finds economically viable for delivery groups served. This is a continuing obligation and may be reviewed by the commission at any time. (Code 1981, § 46-4-153, enacted by Ga. L. 1997, p. 798, § 4; Ga. L. 2002, p. 475, § 8.) The 2002 amendment, effective April 25, 2002, in subsection (a)(1), inserted ‘‘or a regulated provider’’ and added the last sentence; inserted ‘‘and consumers’’ in the middle of subsection (d); and added subsection (f ). 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.’ ’’ 382 Page: 383 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:39 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-153.1 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-153.1 46-4-153.1. Certificates of authority for EMC gas affiliates; terms and conditions; requirements. (a) Notwithstanding any other provision of this article or Article 4 of Chapter 3 of this title, the commission shall have authority to issue certificates of authority to an EMC gas affiliate but shall not have authority to issue certificates of authority to an electric membership corporation. The commission’s order granting a certificate of authority to an EMC gas affiliate shall include terms and conditions to govern the relationship between the electric membership corporation and its EMC gas affiliate. The terms and conditions shall be designed to prevent cross-subsidization between the provision of electricity and the provision of natural gas services, to encourage and promote fair competition in the overall retail natural gas market, and to protect the privacy of both electric and natural gas consumers. (b) The order by the commission pursuant to this Code section shall include the requirements set forth in this subsection, as well as such other rules as the commission shall determine are necessary to protect electric and natural gas consumers and promote competition: (1) To ensure that cross-subsidizations do not occur between the electricity services of an electric membership corporation and the gas activities of its gas affiliate, the terms and conditions ordered by the commission shall provide that each electric membership corporation having a gas affiliate shall: (A) Fully allocate all electricity activities costs and gas activities costs, including costs for any shared services, between the electric membership corporation’s electricity activities and the gas activities of its gas affiliate, in accordance with the applicable uniform system of accounts and generally accepted accounting principles, as applicable; (B) Develop and maintain a cost allocation manual, approved by the commission, describing the electric membership corporation’s methods of cost allocation and such other information and policies reasonably required by the commission to ensure compliance with this article and the terms and conditions ordered by the commission. Such manual shall: (i) Establish rules for the pricing of transactions between an electric membership corporation and its gas affiliate, including the transfer of assets between the two; (ii) Provide that any loans from the electric membership corporation to its gas affiliate shall be at market rates, shall not reflect rates which are generally available through the use of any tax exempt financing, and may not be tied to any loans from the federal or state government; 383 Page: 384 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:40 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-153.1 PUBLIC UTILITIES, ETC. 46-4-153.1 (iii) Require the electric membership corporation and its gas affiliate to maintain separate books of accounts and records which shall, subject to the commission’s rules for treatment of trade secrets, be subject to production and inspection by the commission for the sole purpose of confirming compliance with this article, the cost allocation manual, and the terms and conditions of the gas affiliate’s certificate; and (iv) Require the annual filing of a statement with the commission certifying the compliance by the electric membership corporation and its gas affiliate with the approved cost allocation manual; and (C) Not charge any costs of the gas affiliate to the electricity customers of the electric membership corporation; and (2) To protect customer privacy and prevent the misuse of customer information, the terms and conditions ordered by the commission shall provide that no electric membership corporation shall release any proprietary customer information to its gas affiliate without obtaining prior verifiable authorization from the customer, as determined in accordance with rules established by the commission. (c) The commission may require that any customer service that an electric membership corporation provides to its gas affiliate be offered to all marketers at the same rate and on the same terms and conditions as provided to the gas affiliate. Any such services provided to the gas affiliate or marketers must be on a strictly confidential basis, such that the electric membership corporation does not share information regarding one marketer with any other marketer, including an EMC gas affiliate. (d) The terms and conditions shall accommodate the organizational structures of electric membership corporations. (e) To assure separate but coordinating governance of an electric membership corporation and its gas affiliate, the terms and conditions shall prohibit more than one-half of the persons serving as members of the board of directors of a gas affiliate from at the same time serving on the board of directors of an electric membership corporation. (f ) Notwithstanding anything to the contrary contained in this Code section, the commission shall make accommodation for the specific legal requirements imposed by state or federal laws applicable to electric membership corporations and other cooperatives. (Code 1981, § 46-4-153.1, enacted by Ga. L. 2002, p. 475, § 9.) Effective date. — This Code section became effective April 25, 2002. Editor’s notes. — Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, pro- vides that: ‘‘This Act shall be known and may be cited as the ‘Natural Gas Consumers’ Relief Act.’ ’’ 384 Page: 385 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:40 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-154 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-154 46-4-154. Notice of election; unbundling; rates; application requirements; surcharge on interruptibles. (a) A gas company may elect to become subject to the provisions of this article by filing a notice of election with the commission and by filing an application to establish just and reasonable rates, including separate rates for unbundled services. Pursuant to such application, the commission shall: (1) Maintain rates for interruptible distribution service at the levels set forth in the rate schedules approved by the commission and in effect on the day the gas company files a notice of election as provided for in this Code section; (2) After notice and hearing, establish rates for firm distribution service using a reasonable method of rate design, which may, at the commission’s discretion, include a straight fixed variable method of rate design; provided, however, that a consumer shall not be required to pay a fee for distribution service during any billing period when the consumer’s meter is turned off; and provided, further, that the method of rate design selected by the commission shall provide for recovery of the revenue requirements of the electing distribution company; (3) Establish separate rates and charges, which may be based on market value, for each type of ancillary service which is classified separately; (4) Provide for the recovery in rates of those costs which the commission determines are prudently incurred and used and useful in providing utility service; and (5) Provide for recovery of costs found by the commission to be stranded and necessary to provide a reasonable return, provided that only prudently incurred stranded costs that cannot be mitigated may be recovered. (b) In any proceeding before the commission to establish rates as provided in subsection (a) of this Code section, the commission shall prescribe rates for the services and cost recovery purposes specified in paragraphs (2), (3), (4), and (5) of subsection (a) of this Code section at levels which are designed to recover the costs of service of the electing distribution company as established by the commission in such proceeding. In such proceeding, the commission shall also prescribe a mechanism by which 95 percent of the revenues to the electing distribution company from rates for interruptible distribution service shall be credited to the universal service fund established for that electing distribution company pursuant to Code Section 46-4-161. Each electing distribution company is authorized to retain for the benefit of its shareholders or owners 5 percent of the revenues the electing distribution company received from rates for interruptible service. Each electing distribution company which retains 5 percent of such 385 Page: 386 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:41 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-154 PUBLIC UTILITIES, ETC. 46-4-154 revenues shall make a report to the commission annually describing the benefits resulting to firm retail customers from interruptible distribution service revenues. (c) In addition to any other applicable filing requirements, any such application by a gas company shall include the following: (1) An identification of each component of natural gas service, including but not limited to commodity sales service, distribution service, and ancillary services, which are to be unbundled and offered under separate rates, together with the total costs to provide each such service by the electing distribution company including a return on investment; (2) Provisions for offering each unbundled service on an equal access, nondiscriminatory basis; (3) A description of the method by which the electing distribution company proposes to allocate its intrastate capacity for firm distribution service to a marketer based upon the peak requirements of the firm retail customers served by the marketer; (4) A description of the method by which the electing distribution company proposes to allocate its rights to interstate pipeline and underground storage to a marketer based upon the peak requirements of the firm retail customers served by the marketer; and (5) A plan for establishing and operating an electronic bulletin board by which the electing distribution company will provide marketers with equal and timely access to information relevant to the availability of firm distribution service. (d) Notwithstanding any other provision of this title, the commission shall hold a hearing regarding an application filed pursuant to this Code section and may suspend the operation of the proposed schedules and defer the use of the proposed rates, charges, classifications, or services for a period of not longer than six months. (e) The commission shall establish a surcharge on all customers receiving interruptible service over the electing distribution company’s distribution system sufficient to ensure that such customers will pay an equitable share of the cost of the distribution system over which such customers receive service. The commission is authorized to direct the electing distribution company or the marketers to collect such surcharge directly from the customers. Such surcharge shall be paid promptly upon receipt into the universal service fund. This surcharge shall not be applied to any hospital that has a medicare and Medicaid payor mix of at least 30 percent and has uncompensated writeoffs for the provision of charity, indigent, and free health care services of not less than 5 percent of such hospital’s annual operating expenses based on the annual hospital surveys by the Division of Health Planning of the Department of Community Health. This surcharge 386 Page: 387 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:42 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-154 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-155 shall not be applied to any institution or property enumerated in Code Section 50-16-3, or administered or regulated under authority granted by Code Section 42-2-5 or 49-4A-6 or by Chapter 9 of Title 50. (Code 1981, § 46-4-154, enacted by Ga. L. 1997, p. 798, § 4; Ga. L. 2002, p. 475, § 10.) The 2002 amendment, effective April 25, 2002, substituted the present provisions of paragraph (a)(2) for the former provisions which read: ‘‘Establish rates for firm distribution service using the straight fixed variable method of rate design, subject to the provisions of subsection (b) of this Code section;’’; deleted former subsection (b) which read: ‘‘(b) If the commission determines that inefficiencies in the rate design or other causes in existence immediately preceding the implementation of the straight fixed variable rate design will result in a material fluctuation of rates for firm distribution service to a group of retail customers upon implementation of straight fixed variable rate design, the commission may make such adjustments to the rates for firm distribution service as it deems appropriate to phase in the straight fixed variable rate design for firm distribution service: ‘‘(b)(1) Over a 12 month period from the date the rates filed by the electing distribution company would otherwise be effective if such material fluctuation will be less than 10 percent of the total gas charges for a group of retail customers; or ‘‘(b)(2) Over a 24 month period from the date the rates filed by the electing distribution company would otherwise be effective if such material fluctuation will be equal to or greater than 10 percent of the total gas charges for a group of retail customers. ‘‘However, in no event shall any such adjustment be made if the adjustment results in cross-subsidization between retail customers receiving firm distribution service and retail customers receiving interruptible distribution service or if the adjustment reduces the revenues to the electing distribution company for firm distribution service below those that would be recovered by the electing distribution company under the straight fixed variable rate without such adjustment.’’; redesignated former subsections (c) through (e) as present subsections (b) through (d), respectively; in subsection (b), substituted ‘‘95 percent’’ for ‘‘90 percent’’ in the second sentence and substituted ‘‘5 percent’’ for ‘‘10 percent’’ in the last two sentences; and added subsection (e). 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.’ ’’ 46-4-155. Regulation of unbundled services; peaking service; customer services; interstate capacity assets. (a) Except as otherwise provided by this article, an electing distribution company which offers firm distribution service remains subject to the jurisdiction of the commission under this title. Without limiting the generality of the foregoing, the commission shall have general supervision of such company pursuant to Code Section 46-2-20, and the rates of an electing distribution company for firm distribution service and the ancillary services which are subject to the rate jurisdiction of the commission shall be established in accordance with the provisions of this article and Code Section 46-2-23.1. (b) An electing distribution company shall offer liquefied natural gas peaking service to marketers at rates and on terms approved by the commission, subject however to the following: (1) If a marketer which is not affiliated with an electing distribution company obtains a peaking service in a delivery group from a person 387 Page: 388 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:43 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 PUBLIC UTILITIES, ETC. 46-4-155 other than the electing distribution company, the rate for liquefied natural gas peaking service by the electing distribution company in such delivery group shall not be subject to approval by the commission but shall be capped at 120 percent of the rate for such service previously established by the commission; and (2) If the commission determines pursuant to a filing by the electing distribution company or otherwise, and based upon the factors listed in subsection (c) of this Code section, that reasonably available alternatives for such peaking services exist in the delivery group, the rate for such services in a delivery group shall not be subject to regulation by the commission and the plant and equipment of the electing distribution company which is used and useful for receiving gas for liquefaction, liquefying gas, storing liquefied natural gas, and re-gasifying liquefied natural gas, including the land upon which such plant and equipment is located, shall be removed from the rate base for rate-making purposes of the electing distribution company in an amount which is the lower of the fair market value or the depreciated book value of such facilities. In addition, the rates for firm distribution service of the electing distribution company shall be adjusted to eliminate any applicable recovery of the operation and maintenance expenses associated with such facilities and gas in storage in such facilities, as well as the return on investment attributable to the amount removed from the rate base. For purposes of such review and determination, the fact that such services have been obtained by a marketer which is not affiliated with the electing distribution company shall create a presumption that there are reasonably available alternatives for such peaking services in the delivery group. (c) An electing distribution company shall offer each type of customer service to marketers at rates and on terms approved by the commission in accordance with this article and Code Section 46-2-23.1 until such time as the commission determines that marketers have reasonably available alternatives to purchasing such service from the electing distribution company. The commission shall make a separate determination for each type of service. In making such determinations, the commission shall consider the following factors: (1) The number and size of alternative providers of the service; (2) The extent to which the service is available from alternative providers in the relevant market; (3) The ability of alternative providers to make functionally equivalent or substitute services readily available at competitive prices, terms, and conditions; and (4) Other indicators of market power which may include market share, growth in market share, ease of entry, and the affiliation of providers of a service. 388 Page: 389 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:44 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-155 (d) For each delivery group for which the commission has not determined pursuant to Code Section 46-4-156 that adequate market conditions exist, and thus has not initiated customer assignment, an electing distribution company shall: (1) Offer interruptible distribution service and balancing services at rates and on terms approved by the commission in accordance with the provisions of this article and Code Section 46-2-23.1 to retail customers and marketers, subject to the rules, regulations, and general terms and conditions of the electing distribution company as approved by the commission; (2) Offer firm distribution service at rates and on terms approved by the commission in accordance with the provisions of this article and Code Section 46-2-23.1 to retail customers and marketers, subject to the rules, regulations, and general terms and conditions of the electing distribution company as approved by the commission; and (3) Offer in conjunction with such firm distribution service a commodity sales service; provided, however, that the rates for such commodity sales service shall be established pursuant to the provisions of Code Section 46-2-26.5, relating to the filing and adoption of a gas supply plan; and provided, further, that the rates for such commodity sales service shall not be subject to the provisions of Code Section 46-2-26.5 nor subject to the approval of the commission if at least five marketers, excluding any marketer which is an affiliate of the electing distribution company, have been granted certificates of authority to serve in the delivery group. (e)(1) As used in this subsection, the term ‘‘interstate capacity assets’’ means interstate transportation and out-of-state gas storage capacity. (2) If, pursuant to the provisions of this article, the rates for commodity sales service of an electing distribution company within a delivery group or groups become no longer subject to the approval of the commission nor to the provisions of Code Section 46-2-26.5, the electing distribution company nevertheless shall continue to be responsible for acquiring and contracting for the interstate capacity assets necessary for gas to be made available on its system, whether directly or by assignment to marketers, for firm distribution service to retail customers within such delivery group or groups unless determined otherwise by the commission in accordance with this subsection. (3) At least every third year following the date when the rates for commodity sales service within a delivery group or groups become no longer subject to commission approval nor to the provisions of Code Section 46-2-26.5, the electing distribution company shall file, on or before August 1 of such year, a capacity supply plan which designates the array of available interstate capacity assets selected by the electing 389 Page: 390 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:45 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 PUBLIC UTILITIES, ETC. 46-4-155 distribution company for the purpose of making gas available on its system for firm distribution service to retail customers in such delivery group or groups. (4) Not less than ten days after any such filing by an electing distribution company, the commission shall conduct a public hearing on the filing. The electing distribution company’s testimony shall be under oath and shall, with any corrections thereto, constitute the electing distribution company’s affirmative case. At any hearing conducted pursuant to this subsection, the burden of proof to show that the proposed capacity supply plan is appropriate shall be upon the electing distribution company. (5) Following such a hearing, the commission shall issue an order approving the capacity supply plan filed by the electing distribution company or adopting a capacity supply plan for the electing distribution company that the commission deems appropriate. Should the commission fail or refuse to issue an order by the ninetieth day after the electing distribution company’s filing which either approves the capacity supply plan filed by the electing distribution company or adopts a different capacity supply plan for the electing distribution company, the capacity supply plan proposed by the electing distribution company shall thereupon be deemed approved by operation of law. (6) Any capacity supply plan approved or adopted by the commission shall: (A) Specify the range of the requirements to be supplied by interstate capacity assets; (B) Describe the array of interstate capacity assets selected by the electing distribution company to meet such requirements; (C) Describe the criteria of the electing distribution company for entering into contracts under such array of interstate capacity assets from time to time to meet such requirements; provided, however, that a capacity supply plan approved or adopted by the commission shall not prescribe the individual contracts to be executed by the electing distribution company in order to implement such plan; and (D) Specify the portion of the interstate capacity assets which must be retained and utilized by the electing distribution company in order to manage and operate its system. (7) When interstate capacity assets that are contained in a capacity supply plan approved or adopted by the commission are allocated by the electing distribution company to a marketer pursuant to the provisions of this article, all of the costs of the interstate capacity assets thus allocated shall be borne by such marketer. 390 Page: 391 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:46 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-155 (8) The provisions of law relating to parties, intervention, and discovery in proceedings before the commission shall apply with respect to proceedings under this subsection. (9) All commission orders issued pursuant to this subsection shall contain the commission’s findings of fact and conclusions of law upon which the commission’s action is based. Any such order shall be deemed a final order subject to judicial review under Chapter 13 of Title 50, the ‘‘Georgia Administrative Procedure Act.’’ (10) Prior to the approval or adoption of a capacity supply plan pursuant to this subsection, the interstate capacity assets of the electing distribution company in the most current gas supply plan of such company approved or adopted by the commission pursuant to the provisions of Code Section 46-2-26.5 shall be treated as a capacity supply plan that is approved or adopted by the commission for purposes of this subsection. (11) After a capacity supply plan has become effective pursuant to provisions of this subsection as a result of a proceeding before the commission, the commission shall retain jurisdiction of the proceeding for the purposes set forth in this subsection. Upon application of the affected electing distribution company or the consumers’ utility counsel division of the Governor’s Office of Consumer Affairs or upon its own initiative, the commission may, after affording due notice and opportunity for hearing to the affected electing distribution company and the intervenors in the proceeding, amend the capacity supply plan of the affected electing distribution company. Any such amendment shall not adversely affect rights under any contract entered into pursuant to such plan without the consent of the parties to such contracts. If an amendment proceeding is initiated by the affected electing distribution company and the commission fails or refuses to issue an order by the ninetieth day after the electing distribution company’s filing, the amended capacity supply plan proposed by the electing distribution company shall thereupon be deemed approved by operation of law. (12) After an electing distribution company has no obligation to provide commodity sales service to retail customers pursuant to the provisions of Code Section 46-4-156 and upon the petition of any interested person and after notice and opportunity for hearing afforded to the electing distribution company, all parties to the most current proceeding establishing a capacity supply plan for such electing distribution company, the consumers’ utility counsel division of the Governor’s Office of Consumer Affairs, all marketers who have been issued a certificate of authority pursuant to Code Section 46-4-153, and all owners or operators of interstate gas pipelines that are a part of said capacity supply plan, the commission may issue an order eliminating the responsibility of the electing distribution company for acquiring and contracting 391 Page: 392 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:46 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 PUBLIC UTILITIES, ETC. 46-4-155 for interstate capacity assets necessary for gas to be made available on its system as well as the obligation of such electing distribution company to file any further capacity supply plans with the commission pursuant to the provisions of this subsection, if the commission determines that: (A) Marketers can and will secure adequate and reliable interstate capacity assets necessary to make gas available on the system of the electing distribution company for service to firm retail customers; (B) Adequate, reliable, and economical interstate capacity assets will not be diverted from use for service to retail customers in Georgia; (C) There is a competitive, highly flexible, and reasonably accessible market for interstate capacity assets for service to retail customers in Georgia; (D) Elimination of such responsibility on the part of the electing distribution company would not adversely affect competition for natural gas service to retail customers in Georgia; and (E) Elimination of such responsibility on the part of the electing distribution company is otherwise in the public interest. If the commission eliminates the responsibility of an electing distribution company for acquiring and contracting for interstate capacity assets and filing further capacity supply plans in accordance with this subsection, the commission shall annually review the assignment of interstate capacity assets. (13) Notwithstanding any other provisions in this Code section to the contrary, no later than July 1, 2003, the commission shall, after notice afforded to the electing distribution company, the consumers’ utility counsel division of the Governor’s Office of Consumer Affairs, all marketers who have been issued a certificate of authority in accordance with Code Section 46-4-153, and all owners or operators of interstate gas pipelines that are a part of said capacity supply plan, hold a hearing regarding a plan for assignment of interstate assets. After such hearing, the commission may adopt a plan for assignment of interstate capacity assets held by the electing distribution company, except for those interstate capacity assets reasonably required for balancing. If adopted, the plan shall provide for interstate capacity assets to be assigned to certificated marketers who desire assignment and who are qualified technically and financially to manage interstate capacity assets. Marketers who accept assignment of interstate capacity assets shall be required by the commission to use such assets primarily to serve retail customers in Georgia and shall be permitted to use such assets outside Georgia so long as the reliability of the system is not compromised. Thereafter, the commission shall annually review the assignment of interstate capacity assets. 392 Page: 393 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:47 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-155 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-155 (14) Any order eliminating the responsibility of the electing distribution company for acquiring and contracting for interstate capacity assets pursuant to paragraph (12) of this subsection and any plan for assignment of interstate capacity assets pursuant to paragraph (13) of this subsection shall, at a minimum, ensure that: (A) Shifts in market share are reflected in an orderly reassignment of interstate capacity assets; (B) Marketers hold sufficient interstate capacity assets to meet the needs of retail customers; (C) Before any such assignment is authorized, the assignee demonstrates to the commission that such assignment will result in financial benefits to firm retail customers; (D) Before any marketer discontinues service in the Georgia market, it assigns its contractual rights for interstate capacity assets used to serve Georgia retail customers in a manner designated by the commission; (E) In the event that the commission imposes temporary directives in accordance with Code Section 46-4-157, interstate capacity assets assigned to marketers are subject to reassignment by the commission to protect the interests of retail customers; and (F) Any other requirement that the commission finds to be in the public interest is imposed upon assignees as a condition of the assignment of interstate capacity assets. (15) After notice and an opportunity for hearing, the commission may authorize, subject to reasonable terms and conditions, an electing distribution company or its designee to utilize or monetize excess interstate capacity assets available to the electing distribution company. (Code 1981, § 46-4-155, enacted by Ga. L. 1997, p. 798, § 4; Ga. L. 2002, p. 475, § 11.) The 2002 amendment, effective April 25, 2002, in subsection (e), added ‘‘unless determined otherwise by the commission in accordance with this subsection’’ at the end of paragraph (e)(2), substituted ‘‘ninetieth day’’ for ‘‘forty fifth day’’ in the last sentence of paragraphs (e)(5) and (e)(11), in paragraph (e)(12), in the first sentence, deleted ‘‘and’’ preceding ‘‘all marketers’’ and inserted ‘‘and all owners or operators of inter- state gas pipelines that are a part of said capacity supply plan,’’ and added the last undesignated paragraph, and added paragraphs (e)(13) through (e)(15). 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.’ ’’ 393 Page: 394 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:48 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-156 PUBLIC UTILITIES, ETC. 46-4-156 46-4-156. Customer assignment methodology; commission determination of adequate market conditions and effect of such determination; lost and unaccounted for gas; notice to customers; petition proceedings; change of marketers; deposit. (a) No later than December 31, 1997, the commission shall promulgate regulations which prescribe a methodology for the random assignment to each marketer certificated within a delivery group of each firm retail customer who has not contracted for distribution service from a marketer. This methodology shall further provide that the percentage of such firm retail customers assigned to a given marketer shall be based upon the percentage at the time of such assignment of all firm retail customers within the delivery group served by such marketer. (b) Any person may file a petition requesting that the commission determine, or the commission on its own motion may determine, that adequate market conditions exist for a particular delivery group. If, after a proceeding on such petition or motion, the commission makes such a determination, the procedures that precede customer assignment shall begin. The commission shall enter a decision as to whether adequate market conditions exist within the earlier of 120 days after the close of the record in the proceeding on such petition or motion or 180 days from the filing of such petition or the making of such motion under this subsection. The commission shall determine that adequate market conditions exist within a specific delivery group based upon consideration of the following factors: (1) The number and size of alternative providers of the distribution service; (2) The extent to which the distribution service is available from alternative providers in the delivery group; (3) Subject to subsection (d) of this Code section and provided that all initial assignments of rights to intrastate capacity for firm distribution service, interstate pipeline, and underground storage by an electing distribution company to marketers, as necessary for marketers to initiate service to all firm retail customers with which they have contracted or to which they have been assigned as provided for in this Code section, whether by allocation pursuant to a tariff approved under paragraph (3) or (4) of subsection (c) of Code Section 46-4-154 or by contract, are effective pursuant to the terms of such tariff or contract and, provided, further, that all initial assignments of rights under firm wellhead gas supply contracts by an electing distribution company to marketers, as necessary for marketers to initiate service to all firm retail customers with which they have contracted or to which they have been assigned as provided for in this Code section, by allocation pursuant to a tariff approved under Code Section 46-4-154 are effective pursuant to the 394 Page: 395 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:48 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-156 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-156 terms of such tariff, an electing distribution company has no obligation to provide commodity sales service to retail customers. (4) Other indicators of market power which may include market share, growth in market share, ease of entry, and the affiliation of providers of a distribution service. (c) If the commission issues an order pursuant to subsection (b) of this Code section determining that adequate market conditions exist, it shall prescribe in such order the contents of notices to be furnished pursuant to the provisions of subsection (e) of this Code section. Subject to the provisions of subsection (d) of this Code section, on the one hundred twentieth day following the issuance of an order for a particular delivery group: (1) Except as otherwise provided in paragraph (4) of this subsection, the rates and terms of service of an electing distribution company for interruptible distribution service and balancing service shall not be subject to approval by the commission, provided that all firm retail customers have contracted with or have been assigned to marketers as provided for in this Code section; (2) Except as otherwise provided in paragraph (4) of this subsection, rates and terms of service for commodity sales service provided by an electing distribution company to retail purchasers of firm distribution service shall not be subject to approval by the commission, provided that all firm retail customers have contracted with or have been assigned to marketers as provided for in this Code section; (3) Subject to subsection (d) of this Code section and provided that all initial assignments of rights to intrastate capacity for firm distribution service, interstate pipeline, and underground storage by an electing distribution company to marketers, as necessary for marketers to initiate service to all firm retail customers with which they have contracted or to which they have been assigned as provided for in this Code section, whether by allocation pursuant to a tariff approved under paragraph (3) or (4) of subsection (d) of Code Section 46-4-154 or by contract, are effective pursuant to the terms of such tariff or contract and, provided, further, that all initial assignments of rights under firm wellhead gas supply contracts by an electing distribution company to marketers, as necessary for marketers to initiate service to all firm retail customers with which they have contracted or to which they have been assigned as provided for in this Code section, by allocation pursuant to a tariff approved under Code Section 46-4-154 are effective pursuant to the terms of such tariff, an electing distribution company has no obligation to provide commodity sales service to retail customers; and (4) The commission is authorized to provide by order, after notice and hearing, for the allocation of the cost of lost and unaccounted for gas among interruptible and firm retail customers. 395 Page: 396 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:49 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-156 PUBLIC UTILITIES, ETC. 46-4-156 (d) If the one hundred twentieth day following the issuance of such order falls during a winter heating season, the provisions of subsection (c) of this Code section and customer assignment shall become effective on the day following the end of the winter heating season. (e) Within 45 days following the issuance of an order pursuant to subsection (b) of this Code section, and again within 80 days following such an order, an electing distribution company shall send a notice regarding the commission’s order to each of its retail customers receiving firm distribution service or commodity sales service within such delivery group. Such notices shall inform the retail customer in plain language that: (1) The electing distribution company will not provide firm distribution service or commodity sales service to such customer, as of the date determined under subsection (c) or (d) of this Code section; (2) Such customer may contract with a marketer certificated under Code Section 46-4-153 to furnish such services; and (3) If the customer does not contract with a marketer within 100 days from the date of such order, the commission will assign, on a random basis, a marketer to furnish such services to said customer. (f )(1) At any time that the electing distribution company determines that any deadline or the expiration of any time period prescribed by this article may result in an adverse impact upon the overall effective implementation of this article, upon the emergence of effective competition, or upon the public interest, it may petition the commission to extend such deadline or period for a time certain. (2) If, in response to such a petition or on its own motion, the commission finds that strict enforcement of any deadline or time period prescribed by this article may result in an adverse impact upon the overall effective implementation of this article, upon the emergence of effective competition, or upon the public interest, it may extend such deadline or period for any period of time up to or equal to the time extension requested in the petition or proposed in the motion. (g) Notwithstanding any other provision of this article, a consumer shall be authorized to change marketers at least once a year without incurring any service charge relating to such change to an alternative marketer. No marketer shall charge any consumer a service charge relating to a change to an alternative marketer if such consumer has not changed marketers within the previous 12 months. Except as otherwise provided in a legally binding contract between the marketer and the consumer, no marketer shall require a notice period from a consumer if a consumer elects to change service to an alternative marketer. The commission shall investigate methods to expedite the electing distribution company’s processes for switching consumers to the consumers’ preferred marketer and may enter appropriate orders to expedite switching consumers. 396 Page: 397 Job Path: @mfgmic/west/stcodes/ga/repl/qj04040.63 Date: 06/30/04 Time: 20:55:49 0000 42051-21 (QS) GA 04 RV34 -- 3rd RUN 46-4-156 DISTRIBUTION, STORAGE, AND SALE OF GAS 46-4-157 (h) A marketer may require a deposit, not to exceed $150.00, from a consumer prior to providing gas distribution service to such consumer. A marketer is not authorized to require an increase in the deposit of a consumer if such consumer has paid all bills from the marketer in a timely manner for a period of three months. A marketer shall refund to any consumer who is not currently delinquent on payments to the marketer any deposit amount exceeding $150.00 within 30 days following April 25, 2002. In any case where a marketer has required a deposit from a consumer and such consumer has paid all bills from the marketer in a timely manner for a period of six months, the marketer shall be required to refund the deposit to the consumer within 60 days. In any event, a deposit shall be refunded to a consumer within 60 days of the date that such consumer changes marketers or discontinues service, provided that such consumer has satisfied all of his or her outstanding financial obligations to the marketer. (Code 1981, § 46-4-156, enacted by Ga. L. 1997, p. 798, § 4; Ga. L. 1999, p. 153, § 1; Ga. L. 2001, p. 1084, § 1; Ga. L. 2001, p. 1206, § 1; Ga. L. 2002, p. 475, § 12.) The 2002 amendment, effective April 25, 2002, substituted ‘‘subsection (c)’’ for ‘‘subsection (d)’’ near the middle of paragraph (b)(3); in subsection (c), substituted ‘‘Except as otherwise provided in paragraph (4) of this subsection, the’’ for ‘‘The’’ at the beginning of paragraph (c)(1), in paragraph (c)(2), substituted ‘‘Except as otherwise provided in paragraph (4) of this subsection,’’ for ‘‘The’’ at the beginning and deleted ‘‘and’’ from the end, substituted ‘‘; and’’ for a period at the end of paragraph (e)(3), and added paragraph (e)(4); in subsection (g), substituted ‘‘consumer’’ for ‘‘retail customer’’ in the first sentence and added the last three sentences; and in subsection (h), substituted ‘‘consumer’’ for ‘‘retail customer’’ throughout, in the first sentence, inserted ‘‘, not to exceed $150.00,’’ and substituted ‘‘consumer’’ for ‘‘customer; provided, however, that such deposit cannot exceed 100 percent of the customer’s average monthly bill based on past customer usage and current marketer prices’’, added the second and third sentences, substituted ‘‘consum- er’’ for ‘‘customer’’ twice in the present fourth sentence, and, in the last sentence, substituted ‘‘such consumer’’ for ‘‘a retail customer’’ and substituted ‘‘that such consumer’’ for ‘‘the retail customer’’.