State Ex Rel. Utilities Commission v. Union Electric Membership Corp.

Brock, J.,

dissenting:

I cannot agree with the majority opinion that by the enactment of G.S. 62-110.2(b) (5) the legislature intended to divest the Utilities Commission of power to inquire into the question of duplication of facilities which might be caused by a consumer’s choice of an electric supplier where the conditions of the statute are otherwise met. And it seems to me that the majority opinion has conceded a right to the exercise of discretion under the statute by the supplier and the Utilities Commission with its statement as follows: “We hold that the 'unrestricted choice of supplier’ on the part of the consumer is subject to the ivillingness of the chosen supplier to serve unless compelled by the Utilities Commission.” (Emphasis added.) Nevertheless the majority opinion affirms the dismissal of this proceeding by the Utilities Commission upon the grounds that G.S. 62-110,2 (b) (6) deprives it of power to make and enforce a determination of whether the extension of Duke’s lines in this case is reasonable, or whether it constitutes an unreasonable and wasteful duplication of facilities as alleged by Union Electric.

In my opinion the statute in question does not divest the Utilities Commission of the power and the duty to make and enforce a determination from the facts of the case whether the choice of supplier made by a consumer, otherwise qualified to make a choice under this statute, would cause an unwarranted duplication of facilities. It may be that the extension of its lines by Duke in this case is proper under the criteria permitting duplication, but the Utilities Commission should be required to make an appropriate determination.

I vote to remand for appropriate findings and conclusions.