What did “dependability of service” mean when South Carolina assigned electric service areas?

Plain-English summary

The South Carolina Attorney General interpreted “dependability of service” in the electric-service-area statute to mean reliable service, particularly a supplier’s ability to provide continuous electricity to existing customers. The Public Service Commission had to weigh that factor alongside existing lines, adequacy of service, and public convenience and necessity when assigning service areas. The AG did not decide whether any named supplier was dependable; it left that factual determination to the commission.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did the AG mean by dependable electric service?
A: It meant reliable service and a supplier’s ability to provide continuous service to existing customers.

Q: Who decided whether an electric supplier was dependable? A: The Public Service Commission made the factual determination when assigning service areas; the AG did not evaluate a particular supplier.

Q: Could the commission compare suppliers’ rates in that assignment? A: The statute quoted in the opinion told the commission to consider several service factors but not rate differentials among electric suppliers.

Q: Did existing power lines matter?
A: Yes. The opinion said the statute expressly included existing lines and facilities among the factors for the commission to consider.

Background and statutory framework

Section 58-27-640 directed the commission to assign certain areas outside municipal limits and away from existing supplier lines. The statute required consideration of location, adequacy and dependability, while excluding rate differentials from the assignment decision. The AG noted that the statute did not define dependability and used ordinary dictionary meanings of “dependable” to reach “trustworthy” and “reliable.” The opinion also described section 58-27-620 as protecting some existing suppliers’ service areas. It said commission judgments about a particular supplier’s performance involved facts the AG could not decide.

Citations and references

• Section 58-27-640 of the South Carolina Code
• Section 58-27-620 of the South Carolina Code

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-29-2006/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06sept29-Duncan.pdf

Original opinion text

HENRY McMASTER
ATToRNEY GENERAL

September 29, 2006

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Tue Honorable Jeffrey D. Duncan
Member, House of Representatives
Post Office Box 721
Clinton, South Carolina 29325
Dear Representative Duncan:
We received your request for an opinion concerning section 58-27-640 of the South Carolina Code. You state: Specifically, I would like you to address the definition of the line in that paragraph that says, "The Commission shall make assignments of areas in accordance with public convenience and necessity considering among other things the location of existing lines and facilities of electric suppliers and the adequacy and dependability of the services of electric suppliers, but not considering rate deferential among electric suppliers." Specifically, I can find no definition of what dependability of service means. Law/Analysis

"AJ1 rules of statutory construction are subservient to the maxim that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute." South Carolina Dept. of Transp. v. First Carolina Com. of South, 369 S.C. 150, _ , 631 S.E.2d 533, 535 (2006). Furthennore, our courts recognize ''[c]lear and unambiguous words in a statute should be given their plain and ordinary meaning." Brown v. County of Berkeley, 366 S.C. 354, 360, 622 S.E.2d 533, 537 (2005). Section 58-27-640 of the South Carolina Code (1976) is contained in article 5, chapter 27 of title 58, which governs the rights of electric suppliers to supply electricity in a given area. According to the legislative history of the provisions contained in article 5, the Legislature originally enacted these provisions in 1969 and they became effective on July l, 1969. Section 58-27-620 of the South Carolina Code (1976) governs an electric supplier's right to operate, as weU as, imposes

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The Honorable Jeffrey D. Duncan
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September 29, 2006

numerous restrictions on its right to operate. Section 58-27-620 specifically allows electric suppliers who served an area as of July 1, 1969 to continue to serve that area. Thus, this provision indicates the Legislature's desire to shield existing electric suppliers, who presumably made substantial investments in providing electricity to the area they serve, from some portions of this piece of legislation. Additionally, this section allows those electric suppliers, with some exceptions, to operate within three hundred feet of their established service area as of July 1, 1969. This allowance again indicates the Legislature's intent to afford certain protections to existing electric suppliers.

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Section 58-27-640, of which you inquire, governs the initial assignment of service areas to electrical suppliers. This section provides: The Public Service Commission shall assign, beginning as soon as practicable after January 1, 1970, to electric suppliers, all areas, by adequately defined boundaries which may be by reference to boundaries drawn on maps or otherwise, that are outside the corporate limits of municipalities, and that are more than three hundred feet from the lines of all electric suppliers as such lines exist on the dates of the assignments; provided, that the Commission may leave unassigned any area in which the Commission, in its discretion, determines the absence of assignment is justified by public convenience and necessity. The Commission shall make assignments of areas in accordance with public convenience and necessity considering, among other things, the location of existing lines and facilities of electric suppliers and the adequacy and dependability of the service of electric suppliers, but not considering rate differentials among electric suppliers. Upon consolidation of the units of government within any county pursuant to the Constitution of this State, the Commission shall initially assign the areas that were within the corporate limits of the municipality merged into the consolidated political subdivision and that are more than three hundred feet from the lines of all electric suppliers as such lines exist on the date of the consolidation to the electric supplier including any existing municipal systems then serving within such areas, subject to the power of the Commission to leave any area unassigned or to reassign any area and subject to §§ 58-27-20, 58-27-630 and 58-27-650. S.C. Code Ann. 58-27-640 (emphasis added).

The Honorable Jeffrey D. Duncan
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September 29, 2006

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In reading section 58-27-640, we gather the intent of the Legislature in enacting these provisions was to allow the PSC to establish services areas and to assign particular electric suppliers to those areas not served by an electric supplier at the time of the Legislature's enactment of article

5. Section 58-27-640 appears to favor the existing providers by stating these assignments shall be
   made considering "public convenience," and in particular, "the location of existing lines and facilities of electric suppliers .... " However, the Legislature instructs the PSC also to consider "the adequacy and dependability of the service of electric suppliers . . . ." Thus, indicating the Legislature's desire for the PSC to also consider whether existing electric suppliers have the ability and capacity to support the service area's needs.

With this understanding of the Legislature's intent in mind, we consider specifically the term "dependability" as used in section 58-27-640. Although section 58-27-610 of the South Carolina Code (1976) contains a list of defined terms applicable to article 5, this list does not contain a definition of dependability. We note the use of the term dependability in several other provisions contained in article 5 with regard to electric services. See S.C. Code§§ 58-27-650, -660. However, these provisions also do not provide a definition or explanation of the term. Id. Thus, we look to the common and ordinary meaning of this term. Webster's New World Dictionary defines "dependable" as "that can be depended on; trustworthy; reliable." Webster's New Word Dictionary 378 (2d College ed. 1976). The American Heritage Dictionary of the English Language defines "dependable" as "capable of being depended upon; trustworthy." The American Heritage Dictionary of the English Language 354 (New College ed. 1980). While mindful the intent of the Legislature with regard to section 58-27-640 and employing the plain and ordinary meaning of the term, we believe dependability means the reliability of the electric service provided. In other words, this factor is concerned with the electric supplier's ability to provide continuous service to its existing customers. This definition accords with the Legislature's intent of ensuring that the PSC assigns service areas to electric suppliers that have the ability to provide sufficient service to their customers. From the language of the statute, the Legislature gave authority to the PSC to determine whether such service is dependable. As the Supreme Court in Nucor Steel, a Division of Nucor Corp. v. South Carolina Public Service Commission, 310 S.C. 539, 543, 426 S.E.2d 319, 321 (1992) noted: "We have traditionally given the PSC, just as any other agency, respectful consideration in their interpretation of a statute. Where an agency is charged with the execution of a statute, the agency's interpretation should not be overruled without cogent reason." Thus, just as a court would defer to the PSC's determination of whether an electric supplier provides dependable service, so do we. Accordingly, whether or not a particular electric supplier is dependable, is best addressed by the PSC. Furthermore, because the PSC's decision as to whether a particular electric supplier is dependable involves a question of fact, the PSC's determination in this regard is onlyreviewable by

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The Honorable Jeffrey D. Duncan
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September 29, 2006

a court and not this Office. Op. S.C. Atty. Gen., June 27, 2006 (stating "we cannot sit as a court, investigating and determining the facts").

Very truly yours,

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Cydjey M. frilling
Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General