Subtitle 1. Public Utilities And Carriers

Research References

Ark. L. Rev.

Legal Control of Business in Arkansas, 5 Ark. L. Rev. 137.

The Growth of Utility Regulation in Arkansas: A Functional Survey, 21 Ark. L. Rev. 539.

U. Ark. Little Rock L.J.

Stafford, Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, 7 U. Ark. Little Rock L.J. 279.

Chapter 1 General Provisions

Effective Dates. Acts 1921, No. 124, § 27: approved Feb. 15, 1921. Emergency declared.

Acts 1929, No. 284, § 2: effective on passage and publication.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1967, No. 234, § 8: July 1, 1967.

Acts 1985, No. 455, § 2: Mar. 20, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that substantial uncertainty exists with respect to the interpretation and application of Act 324 of 1935, as amended, to lessors of public utility equipment or facilities that take no active role in the management or operation of such equipment or facilities; that clarification of Act 324 will provide an immediate, direct and substantial benefit to the utility ratepayers of Arkansas by enabling the financing of transactions to provide lower costs of operation of said equipment or facilities; and that this Act will provide necessary clarity to Act 324. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 688, § 7: Mar. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Arkansas Public Service Commission to impose civil sanctions is being challenged; that the PSC must have civil sanction authority in order to perform its duties in a timely manner and thereby protect the utility ratepayers of this state; and that this Act is therefore immediately necessary to clarify the Commission's authority. Therefore an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 1084, § 3: Apr. 17, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain confusion exists concerning the definition of a telephone public utility and that certain nonregulated entities are attempting to take advantage of this confusion to the detriment of existing telephone utilities. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987 (1st Ex. Sess.), No. 37, § 7: June 12, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that regulation of small water and sewer utilities as ‘public utilities’ under the jurisdiction of the Public Service Commission generally imposes heavy regulatory costs upon the consumers, so that the cost of preparing a rate case alone may equal or exceed the other total revenue requirements of those utilities; that the effect of regulation is often to increase costs that are proportionately far in excess of the benefits of regulation; that customers of small water and sewer utilities may be better off in the long run if they could simply buy their water or sewer utility outright and run it themselves; and that this Act is immediately necessary to remedy the present situation. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1988 (4th Ex. Sess.), No. 21, § 4: July 15, 1988. Emergency clause provided: “It is hereby found and determined by the General Assembly that certain small water companies which are now exempt from regulation by the Public Service Commission should be allowed to voluntarily submit to the Commission's regulations or become subject to regulation by the Commission if at least a majority of the company's customers petition the Commission to regulate the water company; that this Act would grant the authority for those water companies and their customers to cause the water companies be deemed public utilities; and that until this Act becomes effective those water companies will remain non-regulated; and that this Act should be given effect immediately in order to give the small water companies and their customers the authority to seek regulation by the Public Service Commission as soon as possible. It is furthermore determined by the General Assembly that a dispute now exists between a military installation and a municipality furnishing water and sewer services to the installation; that the Public Service Commission should, if so requested by the municipality, have jurisdiction to settle the dispute; that this Act so provides and should be given immediate effect in order to provide an efficient method of settling the dispute. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, Nos. 854 and 1037, § 6: Mar. 29, 1991 and Apr. 8, 1991, respectively. Emergency clause provided: “It is hereby found and determined by the General Assembly that regulation of cellular mobile telecommunications service is a competitive service subject to the pressures of the market place and that rate and price regulation of such service by the Public Service Commission is unnecessary to the public interest, and is an unnecessary burden on providers of such service. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

23-1-101. Definitions.

As used in this act, unless the context otherwise requires:

  1. “Affiliated interest with a public utility” includes the following:
    1. Every corporation and person owning or holding directly or indirectly twenty-five percent (25%) or more of the voting securities of the public utility;
    2. Every corporation or person in any chain of successive ownership, or holding, of twenty-five percent (25%) or more of the voting securities of that public utility;
    3. Every corporation, twenty-five percent (25%) or more of whose voting securities is owned by any person or corporation owning twenty-five percent (25%) or more of the voting securities of the public utility or is owned by any person or corporation in any chain of successive ownership of twenty-five percent (25%) or more of the voting securities; and
    4. Every person who is an officer or director of that public utility or of any corporation in any chain of successive ownership or holding of twenty-five percent (25%) or more of the voting securities of the public utility;
  2. “Commission” means the Arkansas Public Service Commission or the Arkansas Department of Transportation with respect to the particular public utilities and matters over which each agency has jurisdiction;
  3. “Commissioner” means one (1) of the commissioners of the Arkansas Public Service Commission with respect to the particular public utilities and matters over which that commission has jurisdiction;
  4. “Corporation” includes without limitation a private corporation, an association, a joint-stock association, a business trust, an electric cooperative corporation, and a limited liability company providing service for charge or compensation in any area or from any facility for which the commission has granted a certificate of convenience and necessity;
  5. “Exempt wholesale generator” means a person, including an affiliate of a public utility, that:
    1. Is engaged directly or indirectly through one (1) or more affiliates and exclusively in the business of owning or operating all or part of a facility for generating electric energy and selling electric energy at wholesale; and
    2. Does not own or operate a facility for the transmission of electricity other than interconnecting transmission facilities used to effect a sale of electric energy at wholesale;
  6. “Gross earnings” includes all amounts received, charged, or chargeable for or on account of any public service furnished or supplied in this state by any public utility and includes all gross income from all incidental, subordinate, or subsidiary operations of the utility in this state. However, revenues from the manufacture and sale of ice shall not be included;
  7. “Municipality” includes a city, a town, an improvement district, other than a county, and any other public or quasi-public corporation which is created or organized under the Arkansas Constitution or laws of the State of Arkansas;
  8. “Person” includes a natural person, a trustee, lessee, receiver, holder of beneficial or equitable interest, a partnership, or two (2) or more persons having a joint or common interest, and a corporation as defined in subdivision (4) of this section;
    1. “Public utility” includes persons and corporations, or their lessees, trustees, and receivers, owning or operating in this state equipment or facilities for:
      1. Producing, generating, transmitting, delivering, or furnishing gas, electricity, steam, or another agent for the production of light, heat, or power to or for the public for compensation;
      2. Diverting, developing, pumping, impounding, distributing, or furnishing water to or for the public for compensation. However, nothing in this subdivision (9) shall be construed to include water facilities and equipment of cities and towns in the definition of public utility. Further, the term “public utility” shall not include any entity described by this subdivision (9) which meets any of the following criteria:
        1. All property owners' associations whose facilities are enjoyed only by members of that association or residents of the community governed by that association;
        2. An entity whose annual operating revenues would cause the entity to be classified as a Class B or lower water company pursuant to the uniform system of accounts adopted by the Arkansas Public Service Commission. However, the term “public utility” includes any water company that petitions, or a majority of whose metered customers petition, the Arkansas Public Service Commission to come under the Arkansas Public Service Commission's jurisdiction if the water company had combined annual operating revenues in excess of four hundred thousand dollars ($400,000) for the three (3) fiscal years immediately preceding the date of filing the petition; or
        3. All improvement districts;
      3. Conveying or transmitting messages or communications by telephone or telegraph where such service is offered to the public for compensation;
      4. Transporting persons by street, suburban, or interurban railway for the public for compensation;
      5. Transporting persons by motor vehicles if the vehicles are operated under a franchise granted by a municipality and in conjunction with, or as a part of, a street, suburban, or interurban railway, or in lieu of either thereof, for the public for compensation; and
      6. Maintaining a sewage collection system or a sewage treatment plant, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations, and other appurtenances necessary or useful for the collection or treatment, purification, and disposal of the liquid and solid waste, sewage, night soil, and industrial waste. However, nothing in this subdivision (9) shall be construed to include sewerage facilities and equipment of cities and towns in the definition of public utility. The term “public utility” shall not include any entity described by this subdivision (9) which meets any of the following criteria:
        1. All property owners' associations whose facilities are enjoyed only by members of that association or residents of the community governed by that association;
        2. An entity whose annual operating revenues would cause the entity to be classified as a Class B or lower sewer company pursuant to the uniform system of accounts adopted by the Arkansas Public Service Commission; or
        3. All improvement districts.
    2. The term “public utility”, as used for ratemaking purposes only:
      1. Shall include persons and corporations or their lessees, trustees, and receivers producing, generating, transmitting, delivering, or furnishing any of the services set forth in subdivisions (9)(A)(i) and (ii) of this section to any other person or corporation for resale or distribution to or for the public for compensation; and
      2. Shall not include persons or corporations providing cellular telecommunications service and not providing any other public utility service in this state, unless the commission finds by order, after notice and hearing and upon substantial evidence, and which shall not take effect pending appeal therefrom, that the public interest requires the application of some or all of the provisions of this subdivision (9) to such persons or corporations.
    3. The term “public utility”, as to any public utility defined in subdivisions (9)(A)(i), (ii), and (vi) of this section, shall not include any person or corporation who or which furnishes the service or commodity exclusively to himself or herself or itself, or to his or her or its employees or tenants, when the service or commodity is not resold to or used by others.
    4. Any other provision of law to the contrary notwithstanding, the term “public utility” shall not include an exempt wholesale generator as defined in subdivision (5) of this section.
    5. The term “public utility”, as to any public utility defined in subdivision (9)(A)(iii) of this section, shall not include any person or corporation who or which:
      1. Furnishes the services exclusively to himself or herself or itself, or to employees; or
      2. Furnishes the services:
        1. To persons who are temporary residents or guests in a hotel or motel owned by him or her or it;
        2. Patients in a hospital owned by him or her or it; or
        3. Students of a public or private institution of higher education who reside in housing provided by that institution.
      1. Notwithstanding the foregoing provisions of this subdivision (9), the term “public utility” shall not include any person or corporation owning any interest in equipment or facilities used for any of the purposes specified in subdivision (9)(A)(i) or subdivision (9)(B) of this section, provided that:
        1. The interest in the equipment or facilities is leased under a net lease directly to a public utility or to a person or corporation that is exempt from regulation as a public utility, either as a sole lessee or joint lessee with one (1) or more other public utilities or persons or corporations so exempt;
        2. The person or corporation is otherwise primarily engaged in one (1) or more businesses other than the business of a public utility or is a person or corporation all of whose equity or beneficial ownership is held by one (1) or more persons or corporations so engaged, either directly or indirectly;
        3. If the lessee is a public utility, the lease to it has been authorized or approved by the Arkansas Public Service Commission;
        4. The lease of the interest in the equipment or facilities extends for an initial term of not less than ten (10) years, except for termination of the lease upon events set forth in the lease, unless any shorter term specified in the lease is not less than two-thirds (2/3) of the then-expected remaining useful life of the equipment or facilities or the lease is entered into following termination of a prior lease upon the liquidation, reorganization, bankruptcy, or insolvency of the prior lessee; and
        5. The rent reserved under the lease shall not include any amount based, directly or indirectly, on revenues or income of the lessee.
      2. For purposes of this subdivision (9)(F), a public utility shall not cease to be such by reason of a lease, directly or indirectly, of a part or all of its interest in such equipment or facilities to any affiliate.
      3. For purposes of this subdivision (9)(F), the term “person or corporation” shall include any receiver, trustee, or liquidating agent of the person or corporation.
      4. The exception of the definition of “public utility” described in subdivision (9)(F)(i) of this section shall continue to apply, following termination of the lessee's right to possession or use of the interest in the equipment or facilities during the lease term or following termination of the lease by the lessee or its trustee pursuant to the provisions of section 365 of the Federal Bankruptcy Code or of any similar Arkansas or federal statute, for so long as the person or corporation referred to in subdivision (9)(F)(i) of this section does not supply electricity directly to the public. In any case, the exception to the definition of “public utility” described in subdivision (9)(F)(i) of this section shall continue to apply for a period of ninety (90) days following the termination, except that no change in rates that would otherwise be subject to the jurisdiction of the Arkansas Public Service Commission shall be effected during the ninety-day period without the approval of the Arkansas Public Service Commission.
          1. Within a county not subject to subdivision (9)(G)(i)(b) of this section, a Class B or lower water company or Class B or lower sewer company that would otherwise be exempt from the definition of “public utility” under subdivision (9)(A)(ii)(b) of this section or subdivision (9)(A)(vi)(b) of this section shall be included within the term “public utility” if the Class B or lower water company or Class B or lower sewer company petitions the Arkansas Public Service Commission to have the company included.
          2. Subdivision (9)(G)(i)(a)(1) of this section does not apply to a water or sewer company formed under the nonprofit corporation laws of this state or any improvement district or water distribution district law of this state.
          1. All Class B or lower water companies or Class B or lower sewer companies that would otherwise be exempt from the definition of “public utility” under subdivision (9)(A)(ii)(b) of this section or subdivision (9)(A)(vi)(b) of this section shall be included within the term “public utility” if a majority of the customers of the company petition the Arkansas Public Service Commission to have the company included. The Arkansas Public Service Commission shall determine the sufficiency of the petition at a public hearing. The water or sewer company or any customer of the company may appear and present evidence on the sufficiency of the petition.
          2. Subdivision (9)(G)(i)(b)(1) of this section does not apply to a water or sewer company formed under the nonprofit corporation laws of this state or any improvement district or water distribution district law of this state.
      1. The Arkansas Public Service Commission shall adopt rules governing the petition process.
      2. A Class B or lower water company or Class B or lower sewer company shall provide the Arkansas Public Service Commission a list of metered customers upon request.
    6. The term “public utility”, as to any public utility defined in subdivision (9)(A)(i) of this section, does not include a person or corporation that furnishes compressed natural gas as a motor fuel to or for the public for compensation and is not otherwise a public utility.
    7. The term “public utility”, as to any public utility defined in subdivision (9)(A)(i) of this section, does not include a person or corporation that:
      1. Purchases electricity from an electric public utility or a municipal electric utility;
      2. Furnishes electricity exclusively to charge battery electric vehicles and plug-in hybrid electric vehicles to or for the public for compensation; and
      3. Is not otherwise a public utility;
  9. “Rate” means and includes every compensation, charge, fare, toll, rental, and classification, or any of them, demanded, observed, charged, or collected by any public utility for any service, products, or commodity offered by it as a public utility to the public and means and includes any rules, regulations, practices, or contracts affecting any compensation, charge, fare, toll, rental, or classification;
  10. “Securities” means capital stock of all classes and all evidences of indebtedness secured or unsecured by lien upon capital assets or revenues, not including, however, any obligation falling due on or before a fixed date that is not more than one (1) year after the date of its issuance and not secured by a lien upon capital assets or revenues; and
  11. “Service” includes any product or commodity furnished and the plant, equipment, apparatus, appliances, property, and facilities employed by any public utility in performing any service or in furnishing any product or commodity devoted to the public purposes of the utility and to the use and accommodation of customers or patrons.

History. Acts 1935, No. 324, § 1; Pope's Dig., § 2064; Acts 1967, No. 234, § 4; 1973, No. 125, § 1; 1985, No. 455, § 1; 1985, No. 1084, § 1; A.S.A. 1947, § 73-201; Acts 1987 (1st Ex. Sess.), No. 37, §§ 1, 2; 1988 (4th Ex. Sess.), No. 21, § 1; 1989, No. 53, § 1; 1989, No. 952, § 1; 1991, No. 854, § 1; 1991, No. 1037, § 1; 1997, No. 305, § 1; 1999, No. 1322, § 1; 2013, No. 662, §§ 1-3; 2013, No. 1133, §§ 1, 2; 2015, No. 380, § 1; 2017, No. 285, § 1; 2017, No. 707, § 89; 2019, No. 391, § 1.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Transportation Safety Agency have been changed to the Arkansas State Highway and Transportation Department. Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No 153, §§ 2 and 3, abolished the Transportation Safety Agency and transferred all of its authority (including regulatory authority), rights, powers, duties, records, and property to the Arkansas State Highway and Transportation Department.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

As codified, subdivision (3) of this section contained additional language that read as follows: “(B) One (1) of the commissioners of the Transportation Safety Agency with respect to the particular public utilities and matters over which that agency has jurisdiction;”

Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No 153, §§ 2 and 3, have rendered that language obsolete, and it has accordingly been decodified.

Publisher's Notes. Acts 1991, by identical Acts Nos. 854 and 1037, § 2, provided:

“This act is intended to relieve cellular telecommunications providers of the obligation to file tariffs with the Arkansas Public Service Commission in order to change prices or service offerings. Nothing in this act shall be construed to limit or affect the authority of the Commission to regulate the division of revenues among telecommunications carriers, including cellular carriers.”

Amendments. The 1997 amendment added (4)(F)(i) (b) ; and, in (4)(F)(i) (a) , added “Within any county not subject to subdivision (4)(F)(i) (b) ” to the beginning and added the last sentence.

The 1999 amendment inserted present (5) and redesignated the following subdivisions accordingly; added present (9)(D) and redesignated the remaining subdivisions accordingly; substituted “agency” for “commission” in present (3)(B); and made stylistic changes.

The 2013 amendment by No. 662 substituted “Class B” for “Class C” throughout (9); in (9)(A)(ii) (b) and (9)(A)(vi) (b) , substituted “An entity” for “All entities”, “the entity” for “them”, and “company” for “companies”; in (9)(A)(ii) (b) , “includes” for “shall include”, “that” for “which”, “Arkansas Public Service Commission’s” for “commission’s”, and “if” for “provided that”, and deleted “must have” preceding “had combined”; inserted “subdivision” preceding “(9)(A)(vi) (b) ” in (9)(G)(i) (a) and (9)(G)(i) (b) ; and substituted “rules” for “regulations” in (9)(G)(ii).

The 2013 amendment by No. 1133, in (4), substituted “without limitation” for “but is not limited to” and inserted “and a limited liability company”; redesignated part of the introductory language of (5) as (5)(A); redesignated former (5)(A) as (B); deleted former (5)(B); inserted “that” at the end of the introductory language of (5); in (5)(A), inserted “Is” at the beginning, deleted “and” preceding “exclusively” and “who” from the end.

The 2015 amendment added (9)(H).

The 2017 amendment by No. 285 added (9)(I).

The 2017 amendment by No. 707 substituted “Department of Transportation” for “State Highway and Transportation Department” in (2).

The 2019 amendment added the (9)(G)(i) (a)(1) , (9)(G)(i) (a)(2) , (9)(G)(i) (b)(1) , and (9)(G)(i) (b)(2) designations; inserted “of this section” in (9)(G)(i) (a)(1) and (9)(G)(i) (b)(1) ; substituted “Subdivision (9)(G)(i) (a)(1) of this section does not” for “The provisions of this section do not” in (9)(G)(i) (a)(2) ; and substituted “Subdivision (9)(G)(i) (b)(1) of this section does not” for “The provisions of this section do not” in (9)(G)(i) (b)(2)

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

U.S. Code. Section 365 of the federal Bankruptcy Code, referred to in this section, is codified as 11 U.S.C. § 365.

Case Notes

In General.

Legislature cautiously amended the definitions of this section in 1973 in order not to infringe upon or modify the power to set sewer rates previously granted to cities and towns; the legislature did not intend to grant additional authority to cities and towns to establish sewer rates subject to the review of the Arkansas Public Service Commission. City of Ft. Smith v. O.K. Foods, Inc., 293 Ark. 379, 738 S.W.2d 96 (1987).

Jurisdiction.

Supreme Court of Arkansas granted a gas utility company's writ of prohibition from a county court's denial of the company's motion to dismiss finding that the Arkansas Public Service Commission had sole and exclusive jurisdiction under § 23-4-201(a)(1) over Arkansas residential gas customers' claims that they were being charged too much for natural gas because of the company's alleged fraudulent conduct. Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007).

Class C Water Utilities.

When the General Assembly deregulated Class C water utilities in 1987, it also nullified by implication any exclusive franchises which may have otherwise been in existence pursuant to a certificate of convenience and necessity. Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996).

Gross Earnings.

The annual fee collected from each utility by the Arkansas Public Service Commission pursuant to § 23-3-110, and based on the utility's “gross earnings” as defined in this section applies only to intrastate services provided by the utility, since the plain language of the definition calls for assessment only on services “supplied in this state.” Arkansas Pub. Serv. Comm'n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981).

Public Utility.

Court held that television transmission is an integral part of the telephone and telegraph business as it has developed and exists, and the fact that the pay television form of picture and sound transmission required installation of special equipment to provide the service does not militate against the conclusion that the telephone company is providing telephone or telegraph service. Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962).

A determinative characteristic of a public utility is that of service to, or readiness to serve, an indefinite public, or a portion of the public. Arkansas Charcoal Co. v. Arkansas Pub. Serv. Comm'n, 299 Ark. 359, 773 S.W.2d 427 (1989).

It is not the number of customers served which is determinative of public utility status, but rather whether a personal company holds itself out to serve all who wish to avail themselves of the service. Arkansas Charcoal Co. v. Arkansas Pub. Serv. Comm'n, 299 Ark. 359, 773 S.W.2d 427 (1989).

Where company that leased toilets did not prove that it was regulated by the Arkansas Public Service Commission or the Arkansas Transportation Commission, that a city, state board, or commission had authorized it to service a territory, or that its rates were regulated by an official agency, it failed to prove that it was a public utility as contemplated by this section. Weiss v. Best Enters., 323 Ark. 712, 917 S.W.2d 543 (1996).

In litigation between landowners and the city over the scope of a utility easement and rights of ingress and egress to service a telecommunications facility, it was irrelevant whether cellular communications businesses were included within the term “public utility” as defined by this section since this definition related only to ratemaking by the Arkansas Public Service Commission. Bishop v. City of Fayetteville, 81 Ark. App. 1, 97 S.W.3d 913 (2003).

Cited: Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997); SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000).

23-1-102. Construction of Acts 1935, No. 324 — Interstate commerce excepted.

  1. Nothing in this act shall be construed as repealing § 14-234-201 et seq. or any part thereof.
  2. Neither this act nor any of its provisions shall apply, or be construed to apply, to commerce with foreign nations or commerce among the several states of the United States except insofar as such an application or construction of this act may be permitted under the provisions of the United States Constitution and the acts of the United States Congress.

History. Acts 1935, No. 324, §§ 9, 70; Pope's Dig., § 2072; A.S.A. 1947, §§ 73-203, 73-263n.

Meaning of “this act”. See note to § 23-1-101.

Case Notes

Effect of Act.

Acts 1935, No. 324 is cumulative of practically all other regulatory enactments except those directly and expressly repealed. Southwestern Bell Tel. Co. v. Matlock, 195 Ark. 159, 111 S.W.2d 500 (1937).

Telephone Rates.

Order of commission fixing rates in Arkansas of telephone company which maintained integrated exchange in both Arkansas and Texas did not interfere with interstate commerce within the meaning of the federal Johnson Act, and federal district court did not have jurisdiction to enjoin such order of the commission. General Tel. Co. v. Robinson, 132 F. Supp. 39 (E.D. Ark. 1955).

23-1-103. Compliance with Acts 1935, No. 324, and rules of commission required — Penalties for noncompliance.

  1. Every public utility and every person or corporation shall obey and comply with every requirement of this act and of every order, decision, direction, or rule made or prescribed by the commission in the matters specified or any other matter in any way relating to or affecting the business of any public utility. The commission shall do everything necessary or proper in order to secure compliance with, and observance of, every order, decision, direction, or rule by all officers, agents, and employees of every public utility.
    1. Upon a finding by the commission that any jurisdictional water, gas, telephone, or electric public utility has knowingly, willfully, and purposefully violated any of the provisions of this act, by agent or otherwise, the commission shall assess a civil sanction of one thousand dollars ($1,000) on the utility.
    2. Each instance of violation shall constitute a separate violation. However, in case of a continued violation, each day's continuance thereof shall not be deemed to be a separate and distinct violation.
    3. The power and authority of the commission to impose civil sanctions are not to be affected by any other civil or criminal proceeding, concerning the same violation, nor shall the imposition of the sanction preclude the commission from imposing other sanctions which are provided for by law.
    4. The proceeds from the civil sanctions imposed under this subsection shall be deposited into the State Treasury as special revenues and credited to the Public Service Commission Fund.
    5. The imposition of a civil sanction under this subsection is subject to review by the commission and by the Court of Appeals in the manner provided by §§ 23-2-422 — 23-2-424.

History. Acts 1935, No. 324, § 61; Pope's Dig., § 2121; Acts 1985, No. 688, § 3; A.S.A. 1947, §§ 73-257; Acts 2019, No. 315, § 2371.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2019 amendment, in (a), substituted “or rule” for “rule, or regulation” in the first and second sentences.

Meaning of “this act”. See note to § 23-1-101.

Case Notes

In General.

The “orders” referred to in subsection (a) of this section are not restricted to any particular act, but rather this section requires every public utility to obey and comply with every Arkansas Public Service Commission order in any way relating to or affecting the business of a public utility. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 68 Ark. App. 148, 5 S.W.3d 484 (1999).

Civil Liability.

Penalty may be inflicted for all violations of the provisions of the act, but there is no provision therein making any utility liable in special damages to a customer for failure to render adequate service. Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948).

Willful Violation.

It is not necessary for the Arkansas Public Service Commission to find “evil intent” in order to find a willful violation of subsection (b) of this section. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 68 Ark. App. 148, 5 S.W.3d 484 (1999).

23-1-104. Compelling compliance with provisions of Acts 1935, No. 324, and orders.

The commission shall have the right, and it is made its duty, to file suit against any person or corporation in any court of competent jurisdiction by mandamus proceedings to compel compliance with the provisions of this act or any order of the commission or, by injunction proceedings, to prevent violations of this act or any order of the commission.

History. Acts 1935, No. 324, § 36; Pope's Dig., § 2099; A.S.A. 1947, § 73-235.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-1-101.

Case Notes

Authority.

Although this section authorized the Arkansas Public Service Commission to take action to enforce its orders, such authority was not exclusive of the right of a certificate holder to likewise resort to the court for enforcement of its rights under existing certificate of convenience and necessity. Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975).

23-1-105. False testimony or reports — False or misleading records, memoranda, etc. — Penalty.

Any person who gives false testimony at any hearing held by the commission, a commissioner, or an examiner or who makes false reports to the commission, when the testimony and reports are required by this act or any lawful order or rule of the commission, who makes any false entries upon the books or records of any public utility, or who makes or preserves any false or misleading vouchers, memoranda, or records showing the nature of, or purpose for, the disbursement of funds of public utilities, shall be deemed guilty of a felony and upon conviction shall be confined in the penitentiary for a period of not less than one (1) year nor more than ten (10) years for every offense.

History. Acts 1935, No. 324, § 61; Pope's Dig., § 2121; A.S.A. 1947, § 73-257.

Publisher's Notes. For definition of the terms “commission” and “commissioner,” see § 23-1-101.

Meaning of “this act”. See note to § 23-1-101.

23-1-106. Penalties cumulative — Recovery of penalty not bar to further penalty or criminal prosecution.

  1. All penalties accruing under this act shall be cumulative.
  2. A suit for the recovery of one (1) penalty shall not be a bar to, or affect, the recovery of any other penalty or forfeiture, nor shall it be a bar to any criminal prosecution against any public utility or any officer, director, agent, or employee thereof or against any other corporation or person.

History. Acts 1935, No. 324, § 63; Pope's Dig., § 2123; A.S.A. 1947, § 73-259.

Meaning of “this act”. See note to § 23-1-101.

23-1-107. Acts of agent, employee, or officer are acts of corporation.

In construing and enforcing the provisions of this act relating to penalties, the act, omission, or failure of any officer, agent, or employee of any corporation shall in every case be deemed to be also the act, omission, or failure of the corporation or person.

History. Acts 1935, No. 324, § 65; Pope's Dig., § 2125; A.S.A. 1947, § 73-261.

Meaning of “this act”. See note to § 23-1-101.

23-1-108. Jurisdiction and venue of actions.

  1. Nothing in this act shall be construed to in any way restrict the jurisdiction of any court of equity.
  2. Any action brought by or against the commission of which a court of equity has jurisdiction under the Arkansas Constitution may be brought either in equity or at law. However, all actions, whether in equity or at law, against the commission shall be brought in the Pulaski County Circuit Court.

History. Acts 1935, No. 324, § 66; Pope's Dig., § 2126; A.S.A. 1947, § 73-262.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-1-101.

23-1-109. Actions for penalties, fees, and assessments.

Actions to recover penalties and all assessments and fees under this act shall be brought in the name of the State of Arkansas, in relation of the Arkansas Public Service Commission, in any court of competent jurisdiction by the attorney member of the commission.

History. Acts 1935, No. 324, § 64; Pope's Dig., § 2124; A.S.A. 1947, § 73-260.

Meaning of “this act”. See note to § 23-1-101.

23-1-110. Actions tried without jury — Exceptions.

All actions brought under the terms of this act by or against the commission in any circuit court, except those to recover penalties, forfeitures, and fees, shall be tried and determined by the court without the intervention of a jury.

History. Acts 1935, No. 324, § 66; Pope's Dig., § 2126; A.S.A. 1947, § 73-262.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-1-101.

23-1-111. Copies of official papers as evidence.

Copies of official documents and orders filed or deposited according to law in the office of the commission certified by a commissioner or by the secretary under the official seal of the commission to be true copies of the original shall be evidence in like manner as the originals in all matters before the commission and in the courts of this state.

History. Acts 1935, No. 324, § 67; Pope's Dig., § 2127; A.S.A. 1947, § 73-263.

Publisher's Notes. For definition of the terms “commission” and “commissioner,” see § 23-1-101.

RESEARCH REFERENCES

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

23-1-112. Contracts in violation of Acts 1935, No. 324, or commission's order.

  1. Any contract made in violation of this act or any lawful order of the commission shall be void and subject to cancellation and recoupment by action in any court of competent jurisdiction.
  2. Where a contract is made contrary to the provisions of this act or any lawful order of the commission, the commission, after notice and hearing, may order the public utility to take steps within ten (10) days to recover the funds or assets thus illegally loaned or transferred by action in a court of competent jurisdiction or to take such other proceedings as may be effective to release the public utility from any such contract.

History. Acts 1935, No. 324, § 39; Pope's Dig., § 2102; A.S.A. 1947, § 73-238.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-1-101.

23-1-113. Indeterminate permits granted under Acts 1919, No. 571.

  1. All indeterminate permits and any rights, powers, privileges, or immunities thereunder, granted to, received by, or otherwise acquired by public utilities pursuant to authority granted by or under the provisions of Acts 1919, No. 571, are expressly declared to be assignable.
  2. All assignments and transfers of such indeterminate permits, or of any right, power, privilege, or immunity existing under or created by Acts 1919, No. 571, made by the holders or owners of such permits prior to June 13, 1929, are declared to be valid and effective.
    1. Neither the adoption of this section nor anything contained in it shall be construed or understood to mean that such indeterminate permits or the rights, powers, privileges, or immunities created or existing under Acts 1919, No. 571, were not assignable and transferable prior to the adoption of this section.
    2. This section shall not be construed as relieving any public utility from the terms of any existing contract or as enlarging or increasing in any manner any right or privilege granted under any indeterminate permit or franchise.

History. Acts 1929, No. 284, § 1; Pope's Dig., § 1938; A.S.A. 1947, § 73-266.

Publisher's Notes. Acts 1919, No. 571, referred to in this section, is codified as §§ 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, 23-12-301, 23-12-302.

23-1-114. Civil sanctions for violation of Acts 1919, No. 571, and Acts 1921, No. 124.

  1. Upon a finding by the Arkansas Public Service Commission that any jurisdictional water, gas, telephone, or electric public utility by agent or otherwise has knowingly, willfully, and purposefully violated any of the provisions of this act, the commission shall assess a civil sanction of one thousand dollars ($1,000) on that utility. Each instance of violation shall constitute a separate violation. However, in case of a continued violation, each day's continuance shall not be deemed to be a separate and distinct violation.
  2. The power and authority of the commission to impose these civil sanctions are not to be affected by any other civil or criminal proceeding concerning the same violation, nor shall the imposition of the civil sanction preclude the commission from imposing other sanctions which are provided for by law.
  3. The proceeds from the civil sanctions imposed under this section shall be deposited into the State Treasury as special revenues and credited to the Public Service Commission Fund.
  4. The imposition of a civil sanction under this section is subject to review by the commission and by the Court of Appeals in the manner provided by §§ 23-2-422 — 23-2-424.

History. Acts 1919, No. 571, § 30; C. & M. Dig., § 1696; Acts 1921, No. 124, § 16; Pope's Dig., § 2015; Acts 1985, No. 688, § 4; A.S.A. 1947, § 73-125.

Publisher's Notes. Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Meaning of “this act”. The words “this act” probably refer to both Acts 1919, No. 571 and Acts 1921, No. 124, which are codified as §§ 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, 23-12-301, 23-12-302 and as §§ 14-200-110, 14-200-112, 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-2-425, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, respectively.

23-1-115. Citizens band radio equipment.

    1. Citizens band radio equipment shall not be used unless that equipment is certified by the Federal Communications Commission.
    2. Citizens band radio equipment shall not be operated on a frequency between twenty-four megahertz (24 MHz) and thirty-five megahertz (35 MHz) without authorization from the commission.
  1. Nothing in this section shall be construed to affect any radio station that is licensed by the commission under 47 U.S.C. § 301.
    1. A first violation of this section is a violation punishable by a fine of one hundred dollars ($100).
    2. A second or subsequent violation of this section is a violation punishable by a fine not to exceed one thousand dollars ($1,000).

History. Acts 2001, No. 1432, § 1; 2005, No. 1994, § 145.

Amendments. The 2005 amendment substituted “violation” for “misdemeanor and” in (c)(2).

Chapter 2 Regulatory Commissions

Publisher's Notes. Acts 1883, No. 114, § 44, p. 199, established a Board of Railroad Commissioners which was to assess railroad property for taxation. Its duties were transferred to the Arkansas Tax Commission by Acts 1909, No. 257, p. 764. Acts 1899, No. 53, p. 82, established a Railroad Commission which was to regulate carrier rates. This commission was succeeded by the Arkansas Corporation Commission established by Acts 1919, No. 571, which in turn was succeeded by the Arkansas Railroad Commission, established by Acts 1921, No. 124. The Arkansas Tax Commission established by Acts 1909, No. 257 was abolished by Acts 1923, No. 343 and certain of its duties were transferred to the Arkansas Railroad Commission; however, those duties were again transferred to a newly created Arkansas Tax Commission by Acts 1927, No. 129. The Arkansas Railroad Commission was succeeded by the Arkansas Corporation Commission created by Acts 1933, No. 12; the Arkansas Tax Commission and the Commissioner of Conservation and Inspection were abolished and some of their duties were transferred to the Arkansas Corporation Commission.

Acts 1935, No. 324, created a Department of Public Utilities within the Arkansas Corporation Commission in which was vested all powers and duties conferred on the Arkansas Corporation Commission with respect to public utilities by Acts 1919, No. 571, Acts 1921, No. 124, and Acts 1933, No. 12. Section 19 of the act provided that Acts 1935, No. 324 would control if any of the powers, duties, or authority so imposed conflicted with its provisions.

Acts 1945, No. 40, § 1, in part, changed the name of the Arkansas Corporation Commission to the Arkansas Public Service Commission, abolished the Department of Public Utilities, and conferred all authority, rights, privileges, etc., of both the Department of Public Utilities and the Arkansas Corporation Commission upon the Arkansas Public Service Commission. It further provided that all taxes, assessments, and fees levied by state law for the support of the Department of Public Utilities and the Arkansas Corporation Commission would be enforced and collected and paid into the State Treasury as provided in the act.

Acts 1949, No. 191, created the Arkansas Tax Commission to which were transferred the powers and duties of the Arkansas Public Service Commission relating to tax laws; the Arkansas Tax Commission was abolished and its duties were transferred to the Arkansas Public Service Commission by Acts 1951, No. 155.

Acts 1957, No. 132, § 3, transferred the powers and duties of the Arkansas Public Service Commission with respect to the regulation of transportation for compensation, safety of operation of public carriers, certification and review of assessment for ad valorem taxation, and matters concerning rates, charges, and services of carriers upon the Arkansas Commerce Commission. The section abolished the Transportation Division of the Arkansas Public Service Commission effective upon the appointment and qualification of the members of the Arkansas Commerce Commission and transferred the rights, privileges, etc., of the Transportation Division to the Arkansas Commerce Commission.

The taxing powers of the Arkansas Public Service Commission were transferred to the Arkansas Assessment Coordination Department pursuant to Acts 1957, No. 234, § 5. Subsequently, Acts 1959, No. 245, § 1, transferred these powers including the assessment and equalization of properties of public carriers from the Arkansas Assessment Coordination Department to the Arkansas Public Service Commission.

Acts 1971, No. 38, § 16 [repealed], changed the name of the Arkansas Commerce Commission to the Arkansas Transportation Commission and transferred both the Arkansas Transportation Commission and the Arkansas Public Service Commission to the Department of Commerce by a type 1 transfer.

Acts 1983, No. 691, § 1, abolished the Department of Commerce. The Arkansas Public Service Commission and the Arkansas Transportation Commission were detached from the Department of Commerce to be independent agencies of state government functioning in the same manner as they had functioned prior to their transfer to the Department of Commerce, by Acts 1983, No. 691, §§ 5 and 12, respectively.

The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23 and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2, 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Cross References. Regulation of carriers, Ark. Const., Art. 17, § 10.

Research References

ALR.

Validity and construction of statutes or ordinances regulating telephone answering services. 35 A.L.R.3d 1430.

State regulation of radio paging service. 44 A.L.R.4th 216.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority. 85 A.L.R.4th 894.

Incidental provision of transportation services, by party not primarily in that business, as common carriage subject to state regulatory control. 87 A.L.R.4th 638.

Public service commission's implied authority to order refund of public utility revenues. 41 A.L.R.5th 783.

Am. Jur. 13 Am. Jur. 2d, Carriers, § 26 et seq.

64 Am. Jur. 2d, Pub. Util., § 143 et seq.

C.J.S. 13 C.J.S., Carriers, § 17 et seq. and § 329 et seq.

73B C.J.S., Pub. Util., § 151 et seq.

Case Notes

Administration of Law.

The administration of Acts 1935, No. 324 is delegated to the commission and not to the courts. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Subchapter 1 — Arkansas Public Service Commission

Preambles. Acts 1957, No. 75 contained a preamble which read:

“Whereas, there are many matters now pending before the Public Service Commission involving rate structures affecting many citizens of our State which should be properly adjudicated before July 1, 1957; and

“Whereas, the Public Service Commission is found to be not sufficiently staffed insofar as general counsel is concerned for the handling of this substantial increase in cases; and

“Whereas, for the Public Service Commission to function properly, additional counsel is needed;

“Now, therefore….”

Effective Dates. Acts 1899, No. 53, § 31: effective on passage.

Acts 1899, No. 119, § 10: effective on passage.

Acts 1945, No. 40, § 6: Feb. 12, 1945. Emergency clause provided: “It has been found and is hereby declared by the General Assembly of the state of Arkansas that revenues to be collected in the future will be materially diminished, and it has also been found that there is urgent need for immediate economies and more efficient operation of the various departments of state; and that consolidation of the agencies hereinbefore provided will make for more efficient operation and, at the same time, effect such economies that the foreseen diminution of future revenues will, in part, be offset by the economies so to be effected by such consolidation; and that only the enactment of this bill will provide such economies and efficient operation. Therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after the date of its passage and approval.”

Acts 1957, No. 75, § 3: Feb. 21, 1957. Emergency clause provided: “It is found as a fact that there is an extremely large number of cases and other matters presently pending before the Arkansas Public Service Commission in which the public has a vital interest and as a result the present personnel of this agency are severely overburdened, and whereas many of these pending cases will require proper preparation and attention before June 30, 1957, this act is necessary for the preservation of the public peace, health, and safety, and an emergency is hereby declared and this act shall take effect and be in force from and after its passage and approval.”

Acts 1975, No. 997, § 9: July 1, 1975. Emergency clause provided: “It is hereby found and determined by the Seventieth General Assembly that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 1975 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 1975 could work irreparable harm upon the proper administration and providing of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after July 1, 1975.”

Acts 1979, No. 64, § 4: Feb. 6, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is presently no authority for the appointment of a special member of the Arkansas Public Service Commission to serve on the Commission when a regular member is disqualified to participate in any matter before the Commission; that since the Commission is composed of only three members, it is in the best interests of all persons concerned that specific authority be provided for the appointment of a special member of the Commission to hear and participate in the determination of any matter before the Commission when a regular member is disqualified for any reason; that this Act is designed to accomplish this purpose and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2003, No 1321, § 19: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2003 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2003 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2003.”

23-2-101. Members generally.

    1. The Arkansas Public Service Commission shall consist of three (3) members to be known as “commissioners”, one (1) of whom shall be a lawyer.
    2. Each commissioner shall have resided in the state for five (5) years and shall be a qualified elector.
  1. Each commissioner before entering on his or her duties shall take the oath prescribed by the Arkansas Constitution, shall swear that he or she is not pecuniarily interested in any public utility or affiliate, or any public carrier or affiliate therewith, as employee, stockholder, or security holder.
  2. Each commissioner shall execute a bond to the State of Arkansas in the sum of ten thousand dollars ($10,000), conditioned for the faithful discharge and performance of his or her duties.
    1. At the expiration of each of the commissioners' terms, the Governor, subject to the approval of the Senate, shall appoint one (1) member who shall hold office for a term of six (6) years.
    2. Each commissioner shall hold office during the term for which he or she was appointed and until his or her successor is appointed and qualified.
  3. The Governor shall designate one (1) of the commissioners as chair.

History. Acts 1945, No. 40, § 1; A.S.A. 1947, §§ 73-101, 73-103, 73-104; Acts 2013, No. 1144, § 1.

A.C.R.C. Notes. The operation of subsection (c) of this section was suspended by adoption of a self-insured fidelity bond program for public officers, officials and employees, effective July 20, 1987, pursuant to § 21-2-701 et seq. The subsection may again become effective upon cessation of coverage under that program. See § 21-2-703.

Publisher's Notes. The terms of the members of the Arkansas Public Service Commission are arranged so that one term expires every two years on January 14.

Amendments. The 2013 amendment repealed former (d).

Case Notes

Constitutionality.

Empowering the Governor to appoint special Arkansas Public Service Commission commissioners, without Senate approval, is a valid delegation of authority by the legislature to the branch of government that is equipped to execute and implement legislative mandates, therefore, § 23-2-102(a) passes constitutional muster. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Appointment.

Upon failure of the Governor to submit the name of an appointee to succeed a member whose term expired while the Senate was in session within five days of the occurrence of the vacancy, the Senate had no power to make the appointment, but the member whose term expired held over until an appointment was made by the Governor, confirmed by the Senate, and the appointee qualified. Walther v. McDonald, 243 Ark. 912, 422 S.W.2d 854 (1968).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

23-2-102. Special commissioners.

  1. When any member of the Arkansas Public Service Commission is disqualified for any reason to hear and participate in the determination of any matter pending before the commission, the Governor shall appoint a qualified person to hear and participate in the decision on the particular matter.
  2. The special member so appointed shall have all authority and responsibility with respect to the particular matter before the commission as if the person were a regular member of the commission, but he or she shall have no authority or responsibility with respect to any other matter before the commission.
  3. A person appointed as a special member of the commission pursuant to the provisions of this section shall be entitled to receive per diem not to exceed one hundred dollars ($100) for each day spent in attending to his or her duties as a special member of the commission. This compensation shall be paid from any funds of the commission which are available for or may legally be used for paying the per diem.

History. Acts 1979, No. 64, §§ 1, 2; A.S.A. 1947, §§ 73-101.1, 73-101.2.

Case Notes

Constitutionality.

Empowering the Governor to appoint special Public Service Commission commissioners, without Senate approval, is a valid delegation of authority by the legislature to the branch of government that is equipped to execute and implement legislative mandates, therefore, subsection (a) passes constitutional muster. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

Power of Appointment.

Even though the Public Service Commission is created by the General Assembly and performs legislative functions, the General Assembly may still delegate the right to appoint commissioners to the Governor. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

There is nothing that would prohibit the Governor from appointing one special commissioner without Senate approval, or from appointing three special commissioners. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991).

23-2-103. Offices — Place of hearings and investigations.

  1. The office of the Arkansas Public Service Commission shall be in Little Rock, Arkansas, but the commission may conduct hearings and make investigations anywhere in the different parts of the state when, in the opinion of the commission, the hearings will best serve the interest and convenience of the public.
  2. When a formal proceeding to consider a general change or modification in the rates and charges of a public utility has been initiated before the commission, the commission shall conduct a hearing for the purpose of receiving public comment in an appropriate location or locations within the service territory of the public utility.

History. Acts 1945, No. 40, § 1; A.S.A. 1947, § 73-104; Acts 1999, No. 1072, § 1; 2017, No. 334, § 1.

Amendments. The 1999 amendment added (b); and made stylistic changes.

The 2017 amendment substituted “Little Rock, Arkansas” for “the State Capitol” in (a).

Case Notes

Public Comments.

Although subsection (b) of this section required the Arkansas Public Service Commission to consider public hearing comments before issuing a decision about a rate increase, its failure to do so was a harmless error when the Commission addressed the comments in a later order and the State did not argue that the rate increase was not supported by substantial evidence, and therefore, prejudice to the residential ratepayers was not shown. Although the wording of subsection (b) of this section does not state specifically that the Commission must have the transcript of the public comments before it issues its decision, that is clearly the intent of the statute. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

23-2-104. Quorum.

The concurrence of two (2) members of the Arkansas Public Service Commission shall be necessary for commission action.

History. Acts 1945, No. 40, § 1; A.S.A. 1947, § 73-104.

23-2-105. Employees generally.

The Arkansas Public Service Commission shall have power to employ during its pleasure such officers, examiners, experts, engineers, statisticians, accountants, attorneys, inspectors, clerks, and employees as it may deem necessary to carry out its proper function or to perform the duties and exercise the powers conferred by law upon the commission, as may be provided by appropriations of the General Assembly.

History. Acts 1945, No. 40, § 1; A.S.A. 1947, § 73-105.

23-2-106. Assistant general counsel.

There is established in the Arkansas Public Service Commission the positions of two (2) assistant general counsel who shall be well-trained attorneys.

History. Acts 1957, No. 75, § 1; A.S.A. 1947, § 73-105.1.

23-2-107. Commissioners and employees — Activities restricted.

  1. No person while serving as a member or employee of the Arkansas Public Service Commission shall practice or represent clients before any other agency of this state which is engaged in the regulation of any business, profession, or trade.
  2. Nor shall any person while serving as a member or employee of the commission represent any person, firm, corporation, or enterprise subject to the regulatory jurisdiction of the commission in any proceeding before any court or administrative body.

History. Acts 1975, No. 997, § 7; A.S.A. 1947, § 73-105.2.

23-2-108. Costs of operation and maintenance.

  1. All costs of operation and maintenance of the Arkansas Public Service Commission shall be paid by vouchered warrants drawn against the General Revenue Fund Account of the State Apportionment Fund in the State Treasury from appropriations made for these purposes by the General Assembly.
    1. The commission shall designate one (1) of its officers or employees who is familiar with cost accounting methods to keep an accurate record of that part of the cost of operation and maintenance of the commission having to do with matters relating to the regulation of public utilities, such costs hereafter referred to as “utilities costs”.
    2. In a similar manner, that officer or employee shall keep an accurate record of that part of the cost of operation and maintenance of the commission having to do with all matters other than those relating to the regulation of public utilities.

History. Acts 1945, No. 40, § 3; A.S.A. 1947, §§ 73-107, 73-111.

23-2-109. Expenses of commission.

All expenses incurred by the Arkansas Public Service Commission pursuant to the provisions of this act, including the actual and necessary traveling and other expenses and disbursements of the commissioners, their officers, and employees incurred while on business of the commission, shall be paid from the funds provided for the use of the commission after being approved by the commission.

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-106.

Meaning of “this act”. Acts 1945, No. 40, codified as §§ 23-2-101, 23-2-10323-2-105, 23-2-108, 23-2-109, 23-2-403, 23-2-406, 23-2-407, 23-2-409, 23-2-413, 23-2-418, 23-3-109, 23-3-110.

23-2-110. Payment of expenses and salaries.

  1. The expenses of the Arkansas Public Service Commission shall be paid from the State Treasury on the warrant of the Auditor of State.
  2. The clerk of the commission shall make out an itemized account of all the expenses incurred by the commission, fees paid for officials for issuing and serving notices and process, witness fees, and any other expenses actually paid and which are authorized by this act.
  3. The account shall be examined by the commission and approved by it if correct, and the account so approved shall be filed with the Auditor of State.
  4. The Auditor of State shall issue his or her warrant on the Treasurer of State for the amount of the account and deliver the warrant to the clerk of the commission, and the Treasurer of State is authorized to pay the warrant.

History. Acts 1899, No. 53, § 21, p. 82; C. & M. Dig., § 1676; Pope's Dig., § 1986; A.S.A. 1947, § 73-108.

Publisher's Notes. For applicability of this section, see §§ 23-4-702 and 23-4-703.

As to the cumulative nature of the remedies given in Acts 1899, No. 53, see § 23-4-704.

Meaning of “this act”. Acts 1899, No. 53, codified as §§ 23-2-110, 23-2-414, 23-4-608, 23-4-70123-4-720, 23-11-103, 23-11-104.

23-2-111. Salaries and expenses — Time of payment.

  1. The salaries and expenses of the Arkansas Public Service Commission shall be paid monthly upon certificate and vouchers, as required by law.
  2. If it becomes necessary to pay for transportation, costs, or other expenses of a similar nature during any current month, the payments may be drawn in advance upon certificate of the commissioners. However, the payments are to be embraced thereafter in the monthly statement to be made as required by law, showing the expenses to have been paid.

History. Acts 1899, No. 119, § 7, p. 194; C. & M. Dig., § 1674; Pope's Dig., § 1984; A.S.A. 1947, § 73-110.

23-2-112. Rural and Community Liaison — General job responsibilities.

  1. The Rural and Community Liaison will serve as a two-way communication link between the Arkansas Public Service Commission and utility customers in Arkansas, particularly those in rural areas.
    1. The liaison is responsible for:
      1. Providing information to communities and rural utility customers concerning utility matters within the jurisdiction of the commission; and
      2. Identifying questions and concerns that rural utility customers may have concerning utility issues and relaying those concerns to the members of the commission and to the commission staff.
    2. In the performance of these duties, the liaison will work with stakeholders in rural areas and communities, including legislators, civic and community leaders, customers and customer groups, and rural utility personnel.

History. Acts 2003, No. 1321, § 14.

23-2-113. Registration as lobbyist — Time limit for eligibility.

A member of the Arkansas Public Service Commission is not eligible to be registered as a lobbyist under § 21-8-601 et seq. until one (1) year after the expiration of the individual's service on the commission.

History. Acts 2013, No. 486, § 3.

Subchapter 2 — Transportation

Publisher's Notes. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23 and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2, 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided:

“On and after the effective date of this Act, the Transportation Safety Agency shall cease to exist, and all authority, rights, powers, duties, records, property, unexpended balances of appropriations, allocations or other funds, privileges and jurisdiction of the Transportation Safety Agency, now prescribed by Sections 1 and 2 of Act 572 of 1987 and other laws of this State, including, but not limited to, the regulation of transportation for compensation, safety of operation of public carriers, the highway safety program authorized by Act 161 of 1967 or Arkansas Code Annotated § 27-73-101, et seq., certification and review of assessment for ad valorem taxation, and matters concerning rates, charges, and services of such carriers, are hereby expressly conferred upon the Arkansas State Highway and Transportation Department as fully as if so named in any law or laws of this State and are hereby transferred to said Department; all orders heretofore issued by the Transportation Safety Agency shall remain in full force and effect; all actions, proceedings and hearings of whatsoever nature, then or hereafter pending before the said Transportation Safety Agency shall be transferred to the Arkansas State Highway and Transportation Department in the same manner and subject to the same incident and with the same results as though they had originated with the Arkansas State Highway and Transportation Department, and all orders, actions, proceedings and hearings of whatsoever nature then or hereafter pending in the name of the Transportation Safety Agency shall survive and be continued, heard and determined by and in the name of the Arkansas State Highway and Transportation Department; and no rights, privileges, immunities or appropriations made, given or granted to or on behalf of the Transportation Safety Agency shall lapse or be lost by reason of such change of agencies, but shall be conferred, transferred and imposed on the Arkansas State Highway and Transportation Department, and all furniture, fixtures, supplies, books, records, reports, equipment and funds derived from whatever source belonging to the Transportation Safety Agency shall be delivered to the Arkansas State Highway and Transportation Department and become its property. The Arkansas State Highway and Transportation Department, is hereby authorized to expend monies from the State Highway Department Fund, as such funds may be appropriated to the Department, for the purposes of fulfilling the duties herein transferred to said Department. Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Effective Dates. Acts 1957, No. 132, § 14: Feb. 28, 1957. Emergency clause provided: “It has been found and declared by the General Assembly of the State of Arkansas that hardships exist due to work load on the members and staff of the Arkansas Public Service Commission resulting from the many administrative and utility matters which that Commission is required to administer; and that the formation of a separate and distinct Arkansas Commerce Commission will afford relief to the Arkansas Public Service Commission and expedite handling of many and varied cases. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Research References

Am. Jur. 13 Am. Jur. 2d, Carriers, § 112 et seq.

23-2-201. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Department” means the Arkansas Department of Transportation; and
  2. “Transportation” means the carriage of persons and property for compensation by air, rail, water, carrier pipelines, or motor carriers.

History. Acts 1957, No. 132, § 1; A.S.A. 1947, § 73-151; Acts 2017, No. 707, § 90.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (1).

Case Notes

Cited: Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

23-2-202 — 23-2-206. [Repealed.]

A.C.R.C. Notes. Former §§ 23-2-20223-2-204, and 23-2-206, which concerned the Arkansas Transportation Commission, were deemed to be superseded by §§ 23-2-20223-2-206 as enacted or amended by Acts 1987, No. 572 (now repealed). The superseded sections were derived from the following sources:

23-2-202. Acts 1957, No. 132, §§ 2, 4; A.S.A. 1947, §§ 73-152, 73-155.

23-2-203. Acts 1975 (Extended Sess., 1976), No. 1185, §§ 1, 2; A.S.A. 1947, §§ 73-152.1, 73-152.2; reen. Acts 1987, No. 997, §§ 1, 2.

23-2-204. Acts 1977, No. 162, §§ 1, 2; A.S.A. 1947, §§ 73-152.3, 73-152.4.

23-2-206. Acts 1983, No. 691, § 12; A.S.A. 1947, § 73-152a.

Publisher's Notes. These sections, concerning transportation, were repealed by Acts 1989 (1st Ex. Sess.), No. 153, § 5. They were derived from the following sources:

23-2-202. Acts 1987, No. 572, § 4.

23-2-203. Acts 1987, No. 572, § 5.

23-2-204. Acts 1987, No. 572, § 3.

23-2-205. Acts 1957, No. 390, § 1; A.S.A. 1947, § 73-153; Acts 1987, No. 572, § 4.

23-2-206. Acts 1987, No. 572, § 3.

23-2-207, 23-2-208. [Repealed.]

Publisher's Notes. These sections, concerning officers and employees, and free transportation of employees, were repealed by Acts 2017, No. 707, §§ 91, 92. The sections were derived from the following sources:

23-2-207. Acts 1957, No. 132, § 6; A.S.A. 1947, § 73-157.

23-2-208. Acts 1957, No. 132, § 7; A.S.A. 1947, § 73-158.

23-2-209. Jurisdiction of commission.

  1. The jurisdiction of the State Highway Commission shall extend to and include all matters pertaining to the regulation, certification, and review of assessment for ad valorem taxation and operation of all carriers providing a transportation service for compensation.
  2. Nothing in this subchapter shall vest the commission with jurisdiction as to any rate, charge, rule, regulation, order, hearing, investigation, or other matter pertaining to the operation within the limits of any municipality of any carrier operating wholly within a municipality.
  3. [Repealed.]

History. Acts 1957, No. 132, § 9; A.S.A. 1947, § 73-160; Acts 1991, No. 802, § 1; 2017, No. 707, § 93.

A.C.R.C. Notes. Acts 1991, No. 802, § 2, provided:

“With regard to the regulation of pipeline companies which are common carriers, all orders heretofore issued by the Arkansas State Highway and Transportation Department or the Arkansas State Highway Commission shall remain in full force and effect; with regard to the regulation of pipeline companies which are common carriers, all actions, proceedings and hearings of whatsoever nature, then or hereafter pending before the said Arkansas State Highway and Transportation Department or the Arkansas State Highway Commission shall be transferred to the Arkansas Public Service Commission in the same manner and subject to the same incident and with the same results as though they had originated with the Arkansas Public Service Commission; and with regard to the regulation of pipeline companies which are common carriers, all orders, actions, proceedings and hearings of whatsoever nature then or hereafter pending in the name of the Arkansas State Highway and Transportation Department or the Arkansas State Highway Commission shall survive and be continued, heard and determined by and in the name of the Arkansas Public Service Commission.”

Amendments. The 2017 amendment repealed (c).

Case Notes

Cited: Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

23-2-210. [Repealed.]

Publisher's Notes. This section, concerning rules and regulations, was repealed by Acts 2017, No. 707, § 94. The section was derived from Acts 1957, No. 132, § 11; A.S.A. 1947, § 73-162.

23-2-211. Proceedings before department.

  1. In the exercise of its jurisdiction, the Arkansas Department of Transportation shall have the power to promulgate reasonable rules and regulations governing procedure before the department and for other purposes.
  2. The department shall have full power to decide all matters which come before the department.
  3. Any order made by the department shall be subject to the same right of appeal by any party to the proceedings as is prescribed by § 23-2-425 or as may be otherwise provided by law.

History. Acts 1957, No. 132, §§ 9, 10; A.S.A. 1947, §§ 73-160, 73-161; Acts 2017, No. 707, § 95.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Appearance of Bias Standard.

The members of the State Highway Commission, although not judges, perform a quasi-judicial function and therefore, by analogy, should be subject to the appearance of bias standard for judges. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).

Although the State Highway Commissioners' hearing of case, in which counsel for plaintiff was also representing the commission and its members in pending lawsuits, created an appearance of bias that would ordinarily have required them to disqualify themselves from considering plaintiff's petition, the rule of necessity, applicable because there was no statutory procedure in place for the replacement of the commissioners, excepted their disqualification; and as it was necessary for them to hear plaintiff's petition they did not commit reversible error by doing so. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).

Cited: Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

23-2-212. Expenses.

  1. All expenses incurred by the Arkansas Department of Transportation under the provisions of this subchapter, including the actual and necessary traveling and other expenses and disbursements incurred while on business of the department, shall be paid from the funds provided for the use of the department.
  2. All costs of operation and maintenance of the department shall be paid by vouchered warrants drawn on the Treasurer of State from appropriations made for such purposes by the General Assembly.
  3. The department shall follow the same procedures used or established by law in writing vouchers, itemizing accounts, in expenses, keeping of records, of salaries, and in general, the cost accounting method of keeping records in the same manner as is prescribed by law for the Arkansas Public Service Commission.

History. Acts 1957, No. 132, §§ 7, 8; A.S.A. 1947, §§ 73-158, 73-159; Acts 2017, No. 707, § 96.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment, in (a), substituted “Department of Transportation” for “State Highway and Transportation Department”, and substituted “under” for “pursuant to”.

Case Notes

Cited: Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

Subchapter 3 — General Regulatory Authority of Commissions

Cross References. Publication of orders, § 1-3-103.

Effective Dates. Acts 1921, No. 124, § 27: approved Feb. 15, 1921. Emergency declared.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1967, No. 234, § 8: July 1, 1967.

Acts 1981, No. 913, § 3: Mar. 28, 1981. Emergency clause provided: “It is hereby found and declared by the General Assembly of the State of Arkansas that existing laws do not protect the disclosure of information by public utilities that may be necessary to the establishment of rates and charges for said utilities. This disclosure of information could be harmful to the interests of the utilities and not in the interests of the citizens of this State. There are currently pending before the Arkansas Public Service Commission rate cases which contain proprietary information and for which this legislation should be an aid to the rate-making process as the existing laws do not permit regulatory access to such information without damage to proprietary interests involve. Therefore, an emergency is declared to exist and this Act, being necessary for the preservation of the health, safety, and welfare, should take effect and be in force from the date of its approval.”

Acts 1993, No. 238, § 5: Feb. 25, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of competitive and technological changes relating to telecommunications services, it is essential that the Arkansas Public Service Commission be authorized to deviate from the rate/base rate of return method of regulation in establishing rates and charges for such services; that it is in the best interest of the public that this authority be granted at the earliest possible date to enable the commission to more equitably establish a system of rates and charges for telecommunications services and that this act is designed to grant such authority and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 204, § 19: Feb. 21, 2003. Emergency clause provided: “It is found and determined by the Eighty-fourth General Assembly that certain provisions of the Electric Consumer Choice Act of 1999, as amended by Act 324 of 2001, for the implementation of retail electric competition may take effect prior to ninety-one (91) days after the adjournment of this session; that this act is intended to prevent such implementation; and that unless this emergency clause is adopted, this act may not go into effect until further steps have been taken toward retail electric competition, which the General Assembly has found not to be in the public interest. The General Assembly further finds that uncertainty surrounding the implementation of the Electric Consumer Choice Act during the ninety (90) days following the adjournment of this session and uncertainty regarding the recovery of reasonable generation costs, could discourage electric utilities from acquiring additional generation resources; that retail electric customers will require such resources; and that this act, in Section 11 and elsewhere, provides procedures to facilitate the acquisition of these resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 246, § 2, Feb. 26, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the April date for the submission of the Arkansas Public Service Commission's annual report to the Governor precludes the commission from including full and complete public utility data for the preceding calendar year; that changing the submission date of the annual report from April to June will allow the commission to include in its annual report full and complete public utility data for the preceding calendar year; that this act is immediately necessary because the commission's next annual report is required to be submitted in the month of April 2009. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

23-2-301. Powers and jurisdiction of commission generally.

The commission is vested with the power and jurisdiction, and it is made its duty, to supervise and regulate every public utility defined in § 23-1-101 and to do all things, whether specifically designated in this act, that may be necessary or expedient in the exercise of such power and jurisdiction, or in the discharge of its duty.

History. Acts 1935, No. 324, § 8; Pope's Dig., § 2071; A.S.A. 1947, § 73-202.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-3-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

In General.

The Arkansas Public Service Commission possesses the authority to regulate the promotional practices of Arkansas electric and gas utilities, and under § 23-2-305 the commission is allowed, after hearing and upon notice, to make or amend reasonable rules pertaining to the operation or service of public utilities; moreover, other statutes also give the commission the power to regulate the operations of and the service provided by public utilities. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

The legislature has given the Arkansas Public Service Commission the responsibility of protecting the public interest in energy conservation and the authority to investigate and either approve or disapprove utility actions in the conservation or distribution of energy. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

Attorney General.

The fact that § 23-4-305 gives the Attorney General the power to represent all classes of utility ratepayers before the commission does not mean that the Attorney General has veto power over the methodology employed by the commission in setting rates pursuant to the authority granted the commission under this section. Bryant v. Arkansas Pub. Serv. Comm'n, 46 Ark. App. 88, 877 S.W.2d 594 (1994).

Intrastate Sales.

State public utilities commission had the jurisdiction to regulate the wholesale intrastate sales of electricity between electric cooperative corporation and its members even though the corporation may incidentally buy or sell electricity which crosses state lines, since that is not the purpose of the corporation. Arkansas Pub. Serv. Comm'n v. Arkansas Elec. Coop. Corp., 273 Ark. 170, 618 S.W.2d 151 (1981), aff'd, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Public Utilities.

Court held that pay television transmission is an integral part of the telephone and telegraph business as it has developed and exists. Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962).

Rates.

The Arkansas Public Service Commission is a creature of the legislature and, in ratemaking, it is performing a legislative function which has been delegated to it; the commission was created to act for the General Assembly and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

The Arkansas Public Service Commission's assertion of jurisdiction over the wholesale rates charged by a customer-owned rural power cooperative to its member retail distributors does not offend either the Supremacy Clause or the Commerce Clause of the United States Constitution nor was such state regulation preempted by the Federal Power Act or the Rural Electrification Act. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Scope of Authority.

Arkansas Public Service Commission's statutory authority is broad enough to allow it to consider stipulations entered into by parties to a proceeding in approaching rate regulation, and it must make independent findings that the stipulations are fair, just, reasonable and in the public interest. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

The legislature's grant of authority to the Arkansas Public Service Commission is broad enough to allow it to hear a complaint brought as a class action. Brandon v. Arkansas Pub. Serv. Comm'n, 67 Ark. App. 140, 992 S.W.2d 834 (1999).

Surcharge statutes tie surcharges to existing facility costs and costs directly related to legislative or regulatory requirements, and there is no authority granted to the Arkansas Public Service Commission for the implementation of social programs; moreover; the same holds true of sliding-scale ratemaking where the statutory language of § 23-4-108 and Arkansas case law refer to costs associated with gas production and service to the ratepayers, not low-income assistance programs. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Cited: City of Fort Smith v. Dep't of Pub. Utils., 195 Ark. 513, 113 S.W.2d 100 (1938); Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); SEECO, Inc. v. Hales, 341 Ark. 673, 22 S.W.3d 157 (2000); Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001); Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007).

23-2-302. Jurisdiction of commission — “Company” defined.

  1. The jurisdiction of the commission shall extend to and include:
      1. All matters pertaining to the regulation and operation of all:
        1. Common carriers;
        2. Railroads;
        3. Express companies;
        4. Car companies;
        5. Freight lines;
        6. Toll bridges;
        7. Ferries;
        8. Steamboats;
        9. Street railroads;
        10. Telegraph companies;
        11. Telephone companies;
        12. Pipeline companies for transportation of oil, gas, and water;
        13. Gas companies;
        14. Electric lighting companies and other companies furnishing gas or electricity for light, heat, or power purposes;
        15. Hydroelectric companies for the generation and for transmission of light, heat, or power; and
        16. Water companies furnishing water within municipalities for municipal, domestic, or industrial use.
      2. Nothing in this act shall vest the commission with jurisdiction as to any rate, charge, rule, regulation, order, hearing, investigation, or other matter pertaining to the operation within the limits of any municipality of any street railroad, telephone company, gas company, pipeline company for transportation of oil, gas, or water, electric company, water company, hydroelectric company, or other company operating a public utility or furnishing public service as to which jurisdiction may be elsewhere conferred in this act upon any municipal council or city commission. Notwithstanding the jurisdiction of the municipality as to the above matters within the limits of the municipality, the commission shall have, and is delegated, the authority and duty to require all utility companies now furnishing public service within the limits of any municipality to furnish and continue furnishing that service to the municipality although the right of regulation of the utility as to rates and all other matters within the municipality is elsewhere in this act conferred upon the municipal councils or city commissions, subject to right of appeal to the courts.
      3. Further, nothing in this act shall vest the commission with jurisdiction as to any improvement district or municipality furnishing gas or electricity for any purpose; and
    1. All other jurisdictions, if any, possessed by the Arkansas Railroad Commission [abolished] under the laws of Arkansas in force on March 31, 1919.
  2. For the purpose of this act, and in the construction of this act, every person, firm, association, company, partnership, corporation, or other organizations engaged in the operation of any public utility above indicated shall be deemed to be a company within the meaning of this act.

History. Acts 1919, No. 571, § 5; C. & M. Dig., § 1618; Acts 1921, No. 124, § 3; Pope's Dig., § 2002; A.S.A. 1947, § 73-115.

Publisher's Notes. As enacted, this section conferred jurisdiction on the Arkansas Corporation Commission whose powers were transferred to the Arkansas Railroad Commission by Acts 1921, No. 124, which also amended this section. Through a series of subsequent transfers of authority, the jurisdiction established in this section devolved upon the Arkansas Public Service Commission and the Arkansas Transportation Commission. See Publisher's Notes to chapter 2 and subchapter 2 of chapter 2.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Meaning of “this act”. The words “this act” probably refer to both Acts 1919, No. 571, and 1921, No. 124, which are codified as §§ 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, 23-12-301, 23-12-302 and as §§ 14-200-110, 14-200-112, 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-2-425, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, respectively.

Cross References. Wastewater treatment districts exempted from jurisdiction, § 14-250-104.

Case Notes

In General.

The Arkansas Public Service Commission possesses the authority to regulate the promotional practices of Arkansas electric and gas utilities, and under § 23-2-305 the commission is allowed, after hearing and upon notice, to make or amend reasonable rules pertaining to the operation or service of public utilities; moreover, other statutes also give the commission the power to regulate the operations of and the service provided by public utilities. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

The Arkansas Public Service Commission is vested with the authority to adjudicate individual disputes involving public rights which the commission is charged by law to administer; public rights which the commission may adjudicate are those arising from the public utility statutes enacted by the General Assembly, and the lawful rules, regulations, and orders entered by the commission in the execution of the statutes. Southwestern Glass Co. v. Arkansas Okla. Gas Corp., 325 Ark. 378, 925 S.W.2d 164 (1996).

Common Carriers.

The railroad commission was authorized by this section to regulate “jitneys” or “jitney” buses operating as public carriers outside of or between municipalities. Mason v. Intercity Term. Ry., 158 Ark. 542, 251 S.W. 10 (1923).

Motor buses operating as public carriers between municipalities are included in term “all common carriers.” Kinder v. Looney, 171 Ark. 16, 283 S.W. 9 (1926).

This section did not grant to the railroad commission jurisdiction to require a certificate of public convenience and necessity for the operation of motor buses over state highways. Arkansas R.R. Comm'n v. Independent Bus Lines, 172 Ark. 3, 285 S.W. 388 (1926).

Electricity.

Under this section the railroad commission had no authority to grant a certificate of convenience and necessity to a company distributing electricity in a city under a franchise from it. De Queen Light & Power Co. v. Curtis, 157 Ark. 238, 248 S.W. 5 (1923).

Railroads.

The railroad commission had jurisdiction over the subject matter of abolishing station agencies as well as creating them, though the agencies were created by special acts of the legislature, and the commission had the implied power in the absence of statutory regulation to formulate rules of procedure for the hearing of applications by the railroad for permission to abandon an agency. Kansas City S. Ry. v. Ark. R.R. Comm'n, 175 Ark. 425, 299 S.W. 761 (1927).

Toll Bridges.

The railroad commission was without jurisdiction to hear a petition to regulate and fix tolls of bridges not alleged to have been taken over as part of the state highway system, since the jurisdiction was vested in the county court. Ark. R.R. Comm'n v. Bovay, 174 Ark. 1057, 298 S.W. 331 (1927).

Cited: Young v. Energy Transp. Sys., 278 Ark. 146, 644 S.W.2d 266 (1983).

23-2-303. Jurisdiction over intrastate transportation services.

Nothing contained in this act shall be construed as giving the Arkansas Public Service Commission any jurisdiction over taxicab or truck service in cities or towns, and of railroad, taxicab, or motor bus service between cities or towns, jurisdiction over which is vested in the Arkansas Department of Transportation.

History. Acts 1935, No. 324, § 1; Pope's Dig., § 2064; Acts 1967, No. 234, § 4; 1973, No. 125, § 1; A.S.A. 1947, § 73-201; Acts 2017, No. 707, § 97.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Meaning of “this act”. See note to § 23-2-301.

Case Notes

Intrastate Sales.

State public utilities commission had the jurisdiction to regulate wholesale intrastate sales of electricity between electric cooperative corporation and its members even though the corporation may incidentally buy or sell electricity which crosses state lines, since that is not the purpose of the corporation. Arkansas Pub. Serv. Comm'n v. Arkansas Elec. Coop. Corp., 273 Ark. 170, 618 S.W.2d 151 (1981), aff'd, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Wholesale Rates.

The Arkansas Public Service Commission's assertion of jurisdiction over the wholesale rates charged by a customer-owned rural power cooperative to its member retail distributors does not offend either the Supremacy Clause or the Commerce Clause of the United States Constitution nor was such state regulation preempted by the Federal Power Act or the Rural Electrification Act. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Cited: Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981).

23-2-304. Certain powers of commission enumerated.

  1. Upon complaint or upon its own motion and upon reasonable notice and after a hearing, the Arkansas Public Service Commission shall have the power to:
    1. Find and fix just, reasonable, and sufficient rates to be thereafter observed, enforced, and demanded by any public utility;
    2. Determine the reasonable, safe, adequate, and sufficient service to be observed, furnished, enforced, or employed by any public utility and to fix this service by its order, or rule;
    3. Ascertain and fix adequate and reasonable standards, classifications, rules, practices, and services to be furnished, imposed, observed, and followed by any or all public utilities;
    4. Ascertain and fix adequate and reasonable standards for the measurement of quantity, quality, pressure, initial voltage, or other conditions pertaining to the supply of all products, commodities, or services furnished or rendered by any and all public utilities;
    5. Prescribe reasonable rules for the examination and testing of the production, commodity, or service, and, for the measurement thereof, establish or approve reasonable rules, specifications, and standards to secure the accuracy of all meters or appliances for measurement;
    6. Provide for the examination and testing of any and all appliances used for the measurement of any product, commodity, or service of any public utility;
      1. Ascertain and fix the value of the whole or any part of the property of any public utility insofar as this value is material to the exercise of the jurisdiction of the commission.
      2. The commission may make revaluations of the whole or any part of the property from time to time and may ascertain the value of any new construction, extension, and addition to or retirement from the property of every public utility;
      1. Require any or all public utilities to carry a proper and adequate depreciation account in accordance with such rules and forms of account as the commission may prescribe.
      2. The commission may ascertain, determine, and by order fix the proper and adequate rates of depreciation of the several classes of property of each public utility.
      3. Each public utility shall conform its depreciation accounts to the rates so ascertained, determined, and fixed by the commission;
    7. Assure that retail customers should have access to safe, reliable, and affordable electricity, including protection against service disconnections in extreme weather or in cases of medical emergency or nonpayment for unrelated services;
      1. Assure that electric utility bills, usage, and payment records should be treated as confidential unless the retail customer consents to their release or the information is provided only in the aggregate.
      2. Notwithstanding subdivision (a)(10)(A) of this section, release of such information may be made pursuant to subpoena, court order, or other applicable statute or rule; and
        1. Propose, develop, solicit, approve, require, implement, and monitor financial assistance programs for utility customers who are sixty-five (65) years of age or older or who meet the income eligibility qualifications of the Low Income Home Energy Assistance Program administered by the Arkansas Energy Office of the Division of Environmental Quality.
        2. After notice and a hearing, the commission may approve and order a financial assistance program for utility customers if the commission determines that the financial assistance program is beneficial to the ratepayers of a public utility and the public utility.
      1. The commission shall not fix rates, charges, or surcharges that recover, directly or indirectly, any portion of the cost of programs authorized under subdivision (a)(11)(A) of this section from a ratepayer that is not in the customer class of ratepayers eligible to participate in the programs.
  2. Because of competitive and technological changes relating to the services provided by telephone public utilities, the commission, upon petition by the telephone public utility, after notice and hearing and a finding that it is in the public interest, may deviate from the rate-base rate of return method of regulation in establishing rates and charges for services provided by the telephone public utility.
  3. In the discharge of its duties under this act, the commission may cooperate with regulatory commissions of other states and of the United States. It may also hold joint hearings and make joint investigations with such commissions.

History. Acts 1935, No. 324, §§ 8, 19; Pope's Dig., §§ 2071, 2082; A.S.A. 1947, §§ 73-202, 73-218; Acts 1993, No. 238, § 1; 2003, No. 204, § 6; 2017, No. 1102, § 1; 2019, No. 315, §§ 2372–2375; 2019, No. 910, § 3239.

A.C.R.C. Notes. Acts 2003, No. 204, § 16, provided:

“Nothing in this act shall alter or diminish the Arkansas Public Service Commission's authority under otherwise applicable law.”

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2003 amendment added (a)(9) and (10) and made related changes.

The 2017 amendment added (a)(11).

The 2019 amendment by No. 315 substituted “or rule” for “rule, or regulation” in (a)(2) and (a)(10)(B); substituted “rules” for “regulations” in (a)(3) and (a)(5); and deleted “regulations” following “rules” in (a)(5) and (a)(8)(A).

The 2019 amendment by No. 910 substituted “Arkansas Energy Office” for “Department of Human Services” in (a)(11)(A)(i).

Meaning of “this act”. See note to § 23-2-301.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Utilities, 8 U. Ark. Little Rock L.J. 611.

Case Notes

In General.

The Arkansas Public Service Commission possesses the authority to regulate the promotional practices of Arkansas electric and gas utilities, and under § 23-2-305 the commission is allowed, after hearing and upon notice, to make or amend reasonable rules pertaining to the operation or service of public utilities; moreover, other statutes also give the commission the power to regulate the operations of and the service provided by public utilities. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

The amendment of this section by Acts 2003, No. 204, is viewed by the court as recognition of the fact that no such power was previously vested in the Arkansas Public Service Commission for the provision of electricity in inclement weather, and, of course, no such power presently exists relating to natural gas. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Evidence.

The commission's statutory authority is clearly broad enough to allow the commission to consider stipulations entered into by some of the parties to a proceeding in approaching rate regulation; of course, the commission must afford a non-stipulating party adequate opportunity to be heard on the merits of the rate application and the stipulation agreed to by some of the parties, and the commission must make an independent finding, supported by substantial evidence, that the stipulation resolves the issues in dispute in a way which is fair, just and reasonable, and in the public interest. Bryant v. Arkansas Pub. Serv. Comm'n, 46 Ark. App. 88, 877 S.W.2d 594 (1994).

Jurisdiction.

Rights involving a specific regulation of the commission, and affecting the delivery, measurement and cost of electrical power supplied to a consumer, fall within the primary jurisdiction of the public service commission. Ozarks Elec. Coop. Corp. v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990).

Rates.

The primary object of the commission in a rate utility case is to provide that rate of return which is adjusted to utility's needs consistent always with the interest of the public. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

The commission is not bound by any formula or combination of formulas in fixing rates. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Upon application of utility company for change in rates commission was not bound by previous order as to rates and could make changes in such order upon proper notice to the company so long as it did not invade the constitutional rights of the company. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

The commission had the authority to strike proposed escalator clauses out of application of gas company for rate increase before allowing the new rates to go into effect under bond. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

The Arkansas Public Service Commission has no authority to discard the rate base method in favor of the field price method in determining the net profits a public utility can earn in this state. Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957).

The Arkansas Public Service Commission is not required to take the same approach to every rate application, or even to consecutive applications by the same utility, when the commission, in its expertise, determines that its previous methods are unsound or inappropriate to the particular application. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

The Arkansas Public Service Commission's assertion of jurisdiction over the wholesale rates charged by a customer-owned rural power cooperative to its member retail distributors does not offend either the Supremacy Clause or the Commerce Clause of the United States Constitution nor was such state regulation preempted by the Federal Power Act or the Rural Electrification Act. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Decision of administrative law judge recognized the objectives of universal fund and rapid changes in the telecommunications industry, so that Arkansas Public Service Commission did not act arbitrarily or capriciously when it adopted judge's order which revised tariffs, and its decision was supported by substantial evidence. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

Scope of Authority.

The commission does not have general authority to regulate all the activities of a public utility corporation but is limited to supervision within the legislative grant of those dealings where the corporation in fact acts as a public utility and its authority does not extend to those situations where the public utility is acting in its private as distinguished from its public capacity. Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955).

The Arkansas Public Service Commission is a creature of the legislature and, in ratemaking, it is performing a legislative function which has been delegated to it; the commission was created to act for the General Assembly and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Arkansas Public Service Commission's statutory authority is broad enough to allow it to consider stipulations entered into by parties to a proceeding in approaching rate regulation, and it must make independent findings that the stipulations are fair, just, reasonable and in the public interest. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

Surcharge statutes tie surcharges to existing facility costs and costs directly related to legislative or regulatory requirements, and there is no authority granted to the Arkansas Public Service Commission for the implementation of social programs; moreover; the same holds true of sliding-scale ratemaking where the statutory language of § 23-4-108 and Arkansas case law refer to costs associated with gas production and service to the ratepayers, not low-income assistance programs. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Service Provided.

Commission did not have jurisdiction to prohibit gas company from engaging in sale and installation of air-conditioning equipment. Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955).

Where a telephone company's rerouting of long distance calls will not result in inadequate service, it is not within the jurisdiction of the Public Service Commission to enjoin the rerouting as a breach of contract. Allied Tel. Co. v. Arkansas Pub. Serv. Comm'n, 239 Ark. 492, 393 S.W.2d 206 (1965).

Violation of Rules.

Where a telephone company violated special rules promulgated by the Arkansas Public Service Commission, the commission was justified in ordering that the telephone company's certificate of convenience either be revoked or transferred to another company since “reasonably adequate” telephone service was not being provided as required by former § 23-17-227. Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981).

Wholesale Sales.

State public utilities commission had the jurisdiction to regulate wholesale intrastate sales of electricity between an electric cooperative corporation and its members, even though the corporation may incidentally buy or sell electricity which crosses state lines, since that is not the purpose of the corporation. Arkansas Pub. Serv. Comm'n v. Arkansas Elec. Coop. Corp., 273 Ark. 170, 618 S.W.2d 151 (1981), aff'd, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Cited: City of Fort Smith v. Dep't of Pub. Utils., 195 Ark. 513, 113 S.W.2d 100 (1938); United States v. Arkansas Power & Light Co., 165 F.2d 354 (8th Cir. 1948); Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948); Yancey v. City of Searcy, 213 Ark. 673, 212 S.W.2d 546 (1948); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962); Commercial Printing Co. v. Arkansas Power & Light Co., 250 Ark. 461, 466 S.W.2d 261 (1971); Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Southwestern Bell Tel. Co. v. Wilkes, 269 Ark. 399, 601 S.W.2d 855 (1980); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); Contel of Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 37 Ark. App. 18, 822 S.W.2d 850 (1992); Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992); Lincoln v. Ark. Pub. Serv. Comm'n, 313 Ark. 295, 854 S.W.2d 330 (1993); Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 889 (2002).

23-2-305. Rules.

The commission is empowered after hearing and upon notice to make and from time to time in like manner to alter or amend such reasonable rules pertaining to the operation, accounting, service, and rates of public utilities and of the practice and procedure governing all investigations by and hearings and proceedings before the commission as it may deem proper and not inconsistent with this act.

History. Acts 1935, No. 324, § 8; Pope's Dig., § 2071; A.S.A. 1947, § 73-202.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-301.

Case Notes

In General.

The Arkansas Public Service Commission possesses the authority to regulate the promotional practices of Arkansas electric and gas utilities, and under this section the commission is allowed, after hearing and upon notice, to make or amend reasonable rules pertaining to the operation or service of public utilities; moreover, other statutes also give the commission the power to regulate the operations of and the service provided by public utilities. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

Hardship or Inconvenience.

Rules established by the Arkansas Public Service Commission are not invalid simply because they may work a hardship or create inconvenience to a public utility. Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 42 Ark. App. 198, 856 S.W.2d 880 (1993).

Rates.

The Arkansas Public Service Commission is a creature of the legislature and, in ratemaking, it is performing a legislative function which has been delegated to it; the commission was created to act for the General Assembly and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

The Arkansas Public Service Commission's assertion of jurisdiction over the wholesale rates charged by a customer-owned rural power cooperative to its member retail distributors does not offend either the Supremacy Clause or the Commerce Clause of the United States Constitution nor was such state regulation preempted by the Federal Power Act or the Rural Electrification Act. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Wholesale Sales.

Public utilities commission had the jurisdiction to regulate wholesale intrastate sales of electricity between electric cooperative corporation and its member cooperatives, even though the corporation may incidentally buy or sell electricity which crosses state lines, since that is not the purpose of the corporation. Arkansas Pub. Serv. Comm'n v. Arkansas Elec. Coop. Corp., 273 Ark. 170, 618 S.W.2d 151 (1981), aff'd, 461 U.S. 375, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983).

Cited: City of Fort Smith v. Dep't of Pub. Utils., 195 Ark. 513, 113 S.W.2d 100 (1938); Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962); Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); Contel of Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 37 Ark. App. 18, 822 S.W.2d 850 (1992).

23-2-306. Systems of accounts.

The commission may establish by order a uniform system of accounts to be kept by any public utility subject to the commission's jurisdiction or may classify the public utilities and establish a system of accounts for each class, and the commission may prescribe the manner in which the accounts shall be kept.

History. Acts 1935, No. 324, § 22; Pope's Dig., § 2085; A.S.A. 1947, § 73-221.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Case Notes

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957); Contel of Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 37 Ark. App. 18, 822 S.W.2d 850 (1992).

23-2-307. Inventories of property may be required.

The commission shall have the power and authority by order to require any public utility from time to time to furnish on forms prescribed by the commission a verified, itemized, and detailed inventory or appraisal of any or all of its property as to which the commission should have knowledge in order to enable it to perform its duties under this act.

History. Acts 1935, No. 324, § 21; Pope's Dig., § 2084; A.S.A. 1947, § 73-220.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-301.

Case Notes

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957).

23-2-308. Reports by utilities may be required.

  1. The commission may require any public utility to file:
    1. Annual reports in such form and of such content and at such time as the commission may require; and
    2. Special reports concerning any matter about which the commission is authorized to inquire or to keep itself informed.
  2. All reports shall be under oath.

History. Acts 1935, No. 324, § 51; A.S.A. 1947, § 73-140.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Cross References. Gross earnings, filing annual statement, § 23-3-109.

23-2-309. Information to be furnished commission on request.

At any time, the commission may require persons, firms, associations, or corporations, so far as they may be subject to its jurisdiction under the terms of this act, to furnish any information which may be in his, her, its, or their possession respecting the rates, tolls, fares, charges, or practices in conducting his, hers, its, or their service. They may also be required to furnish the commission at all times for its inspection any books or papers or reports and statements. The reports and statements shall be under oath when required by the commission. The form of all reports required under this act shall be prescribed by the commission.

History. Acts 1919, No. 571, § 11; C. & M. Dig., §§ 1663, 1664, 1686, 1687; Acts 1921, No. 124, § 8; Pope's Dig., §§ 1980, 1990, 1991, 2007; A.S.A. 1947, § 73-123.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-302.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Case Notes

Cited: Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955).

23-2-310. Investigations, examinations, testing, etc.

    1. The commission, whenever it may be necessary in the performance of its duties, may investigate and examine the condition and operation of public utilities or any particular utility.
    2. In conducting such investigations, the commission may proceed either with or without a hearing as it may deem best, but it shall make no order without affording a hearing to the affected parties.
  1. The commissioners and the officers and employees of the commission, during all reasonable hours, may from time to time enter upon any premises occupied by any public utility or upon or in which any of the utility's property is located for the purpose of making any investigation, examination, or test, or for exercising any power under this act. The commission may set up and use on such premises any apparatus and appliances necessary therefor.
  2. The public utility shall have the right to be represented at the making of such investigations and examinations, tests, and inspections.

History. Acts 1935, No. 324, § 22; Pope's Dig., § 2085; A.S.A. 1947, § 73-221.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-301.

Case Notes

Authority of Commission.

The commission properly exercised its authority and discretion in defining the scope of the docket. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957).

23-2-311. Entry and inspection of utility property.

The commission shall have power, through its members, inspectors, or employees, to enter into, upon, and to inspect the property of any public utility so far as may be proper, in order to exercise the jurisdiction conferred upon the commission in this act.

History. Acts 1919, No. 571, § 11; C. & M. Dig., §§ 1663, 1664, 1686, 1687; Acts 1921, No. 124, § 8; Pope's Dig., §§ 1980, 1990, 1991, 2007; A.S.A. 1947, § 73-123.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Meaning of “this act”. See note to § 23-2-302.

Case Notes

Cited: Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955).

23-2-312. Refusal to permit inspection or examination — Cancellation of charter.

  1. The failure or refusal of any public utility, if persisted in, to permit the inspection or examination of its physical properties, premises, plants, equipment, accessories, books, papers, files, documents, contracts, agreements, or accounts shall be deemed cause for the cancellation of its charter or license to do business in this state.
  2. When such a fact is certified to the Secretary of State by the commission, he or she shall cancel the charter or license of the offending utility to transact business in this state.

History. Acts 1935, No. 324, § 60; Pope's Dig., § 2120; A.S.A. 1947, § 73-256.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

23-2-313. Subpoena powers — Compelling attendance and testimony.

  1. The commission shall have the power, either as a commission or by any of its members, to subpoena witnesses and take testimony and administer oaths to any witness in any proceeding or examination instituted before it or conducted by it in reference to any matter within its jurisdiction.
  2. In all hearings and proceedings before the commission, the evidence of witnesses and the production of the documentary evidence may be required at any designated place of hearing.
    1. In case of disobedience to a subpoena or other process, the commission may invoke the aid of the Pulaski County Circuit Court in requiring the evidence and testimony of witnesses and the production of papers, books, and documents.
    2. The court, in case of refusal to obey the subpoena issued to any person or to any public service corporation subject to the provisions of this act, shall issue an order calling the public service corporation or any person to appear before the commission and produce all books and papers if so ordered and give evidence touching the matter in question.
    3. Any failure to obey the order of the court may be punished by the court as contempt thereof.
  3. A claim that any testimony or evidence may tend to incriminate the person giving it shall not excuse the witness from testifying, but the witness shall not be prosecuted for any offense concerning which he or she is compelled to testify pursuant to this section.

History. Acts 1919, No. 571, § 11; C. & M. Dig., §§ 1663, 1664, 1686, 1687; Acts 1921, No. 124, § 8; Pope's Dig., §§ 1980, 1990, 1991, 2007; A.S.A. 1947, § 73-123.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Meaning of “this act”. See note to § 23-2-302.

Case Notes

Cited: Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955).

23-2-314. Fees charged by commission.

  1. The commission shall charge and collect the following fees:
    1. Two hundred dollars ($200) for filing each application for a certificate of public convenience and necessity as required by §§ 23-3-201 — 23-3-205; and
    2. Such fees for copying and certifying the copy of any filed document as shall be determined by the commission from time to time after reasonable notice and hearing.
  2. No fees shall be charged or collected for copies of papers, records, or official documents furnished to public officers for use in their official capacity or for the annual reports of the commission in the ordinary course of distribution.
  3. All fees charged and collected by the commission shall be paid daily, accompanied by a detailed statement thereof, into the State Treasury.

History. Acts 1935, No. 324, § 53; Pope's Dig., § 2113; A.S.A. 1947, § 73-114; Acts 1989, No. 742, § 1.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

23-2-315. Reports by commission.

The Arkansas Public Service Commission shall make and submit to the Governor during the month of June of each year a report containing a full and complete account of its transactions and proceedings for the preceding calendar year, together with such other facts, suggestions, and recommendations as it may deem of value to the people of the state.

History. Acts 1935, No. 324, § 14; Pope's Dig., § 2077; A.S.A. 1947, § 73-141; Acts 1989, No. 594, § 1; 2009, No. 246, § 1.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2009 amendment substituted “Arkansas Public Service Commission” for “commission” and “June” for “April”.

23-2-316. Records of commission open to public — Exceptions — Protective orders.

  1. All facts and information, including all reports, records, files, books, accounts, papers, and memoranda in the possession of the commission, shall be public and open to public inspection at all reasonable times.
    1. Whenever the commission determines it to be necessary in the interest of the public or, as to proprietary facts or trade secrets, in the interest of the utility to withhold such facts and information from the public, the commission shall do so.
    2. The commission may take such action in the nature of, but not limited to, issuing protective orders, temporarily or permanently sealing records, or making other appropriate orders to prevent or otherwise limit public disclosure of facts and information.

History. Acts 1935, No. 324, § 27; Pope's Dig., § 2090; Acts 1981, No. 913, § 1; A.S.A. 1947, § 73-226.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Research References

Ark. L. Rev.

Watkins, Access to Public Records under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741.

Case Notes

Specific Findings.

The Arkansas Public Service Commission erred in entering a protective order when it failed to make specific findings that the documents were nondisclosable based upon the information in the record; under § 23-2-421(a), this section, and Commission Practice & Procedure Rule 13.05(b), it was necessary for the commission to find either that it was in the public interest or necessary to protect proprietary facts or trade secrets of the utility in order to seal the documents. Bryant v. Arkansas Pub. Serv. Comm'n, 45 Ark. App. 56, 871 S.W.2d 414 (1994).

Cited: Bryant v. Arkansas Pub. Serv. Comm'n, 55 Ark. App. 125, 931 S.W.2d 795 (1996).

Subchapter 4 — Procedure Before Commissions

Effective Dates. Acts 1899, No. 53, § 31: effective on passage.

Acts 1899, No. 119, § 10: effective on passage.

Acts 1901, No. 24, § 2: effective on passage.

Acts 1921, No. 124, § 27: approved Feb. 15, 1921. Emergency declared.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1945, No. 40, § 6: Feb. 12, 1945. Emergency clause provided: “It has been found and is hereby declared by the General Assembly of the state of Arkansas that revenues to be collected in the future will be materially diminished, and it has also been found that there is urgent need for immediate economies and more efficient operation of the various departments of state; and that consolidation of the agencies hereinbefore provided will make for more efficient operation and, at the same time, effect such economies that the foreseen diminution of future revenues will, in part, be offset by the economies so to be effected by such consolidation; and that only the enactment of this bill will provide such economies and efficient operation. Therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after the date of its passage and approval.”

Acts 1973, No. 231, § 6: Mar. 7, 1973. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that doubt and confusion exists as to the proper construction of existing statutes pertaining to the effective date of orders of the Arkansas Public Service Commission and with respect to the proper procedures to follow to obtain judicial review of such orders; that such doubt and confusion could lead to a miscarriage of justice through a technical failure to comply with these statutes as ultimately construed by the courts; and that enactment of this bill will resolve said doubt and confusion. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1980 (2nd Ex. Sess.), No. 4, § 6: May 8, 1980. Emergency clause provided: “It is hereby found and determined by the General Assembly that the proper regulation of utilities in Arkansas requires that the procedure by which changes in rates are made be amended. This amendment is necessary in order that the needs of the companies may be properly considered while ratepayers are also properly protected. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall take effect and be in full force from the date of its passage and approval.”

Acts 1985, No. 770, § 4: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the practice of requiring circuit court judicial review of Public Service Commission orders works an undue hardship on the people of this State by creating undue delay in the final implementation of just and reasonable rates, and immediate correction of this hardship is necessary in order to preserve the public safety, health, peace, and general welfare of the State. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 265, § 3: Mar. 17, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that the ability of utilities to react promptly to rapidly changing economic conditions through the issuance of stocks, bonds, notes and other evidences of indebtedness, as approved by the commission, is in the best interests of utility ratepayers and the public in general and that this act is designed to permit them to do so and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

Research References

Ark. L. Rev.

Theory of Testimonial Competency and Privilege, 4 Ark. L. Rev. 377.

Rules of Evidence in Administrative Proceedings, 15 Ark. L. Rev. 138.

23-2-401. Definition.

As used in §§ 23-2-42123-2-424, unless the context otherwise requires, the term “the commission” refers to the Arkansas Public Service Commission or to whatever successor agency might in the future be vested with the duties, responsibilities, powers, authorities, and jurisdiction of that commission.

History. Acts 1973, No. 231, § 1; A.S.A. 1947, § 73-229.3.

23-2-402. Powers of commission, commissioners, and examiners.

The commission and each of the commissioners and examiners specifically designated to make investigations, for the purposes mentioned in this act, may:

  1. Issue subpoenas, subpoenas duces tecum, and all necessary process in proceedings pending before the commission, a commissioner, or an examiner;
  2. Administer oaths, examine witnesses, compel the production of records, books, papers, files, documents, contracts, correspondence, agreements, or accounts necessary for any investigation being conducted; and
  3. Certify official acts.

History. Acts 1935, No. 324, § 23; Pope's Dig., § 2086; A.S.A. 1947, § 73-222.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-82-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

Cited: Gatlin v. Missouri Pac. R.R., 631 F.2d 551 (8th Cir. 1980).

23-2-403. Evidence and pleading.

  1. The Arkansas Public Service Commission and the Arkansas Department of Transportation shall prescribe the rules of procedure and for taking of evidence in all matters that may come before them.
  2. On the investigations, preparations, and hearing of cases, the commission and the department shall not be bound by the strict technical rules of pleading and evidence, but they may exercise such discretion as will facilitate their efforts to ascertain the facts bearing upon the right and justice of the matters before them.

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-127; Acts 2017, No. 707, § 98.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Cross References. Records of proceedings, § 23-2-418.

Case Notes

Admission of Evidence.

In a hearing on a petition to transfer a certificate of convenience and necessity for the transportation of household goods, the commerce commission did not abuse its discretion by admitting in evidence lists of hauls made by the transferee taken from the books of the transferor. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967).

Cross-Examination of Witnesses.

Although a utility argued that the Public Service Commission violated constitutional guarantees of due process by limiting the cross-examination of witnesses, the utility waived this argument on appeal by not making a timely objection below. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. App. 147, 289 S.W.3d 513 (2008).

Judicial Review.

Public Service Commission (PSC) did not act err in declaring that an electric utility's recovery of storm restoration costs in the amount of $47 million would constitute improper, retroactive ratemaking, nor did it err in using a hypothetical debt-to-equity (D/E) ratio of 52/48 to establish the cost of capital instead of the utility's 44/56 D/E ratio; however, in calculating the dividends-payable balance, the PSC erred in using the utility's parent company's lag time. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. App. 147, 289 S.W.3d 513 (2008).

Cited: Transport Co. v. Arkansas Transp. Comm'n, 255 Ark. 919, 504 S.W.2d 366 (1974); Lee's Trucking, Inc. v. Transport Co., 303 Ark. 444, 798 S.W.2d 59 (1990).

23-2-404. [Repealed.]

Publisher's Notes. This section, concerning dismissal of complaints, was repealed by Acts 1997, No. 1311, § 1. The section was derived from Acts 1935, No. 324, § 25; Pope's Dig., § 2028; A.S.A. 1947, § 73-224.

As to the effect of the repeal of this section, see § 23-2-430.

23-2-405. Service of process, notices, complaints, etc.

  1. All process issued by the commission shall extend to all parts of the state, and any such process, together with the service of all notices issued by the commission, as well as copies of complaints, rules, and orders of the commission, may be served by any person authorized to serve process issued out of courts of law, or by mail, as the commission may direct.
  2. In instances in which service is had by mail, a duplicate of the instrument served shall be enclosed, upon which duplicate the person served shall endorse the date of his or her receipt of the original and promptly return the duplicate to the commission.
  3. Any person who fails, neglects, or refuses to promptly return the receipt and duplicate shall be guilty of a Class A misdemeanor.

History. Acts 1935, No. 324, § 29; Pope's Dig., § 2092; A.S.A. 1947, § 73-228; Acts 2005, No. 1994, § 203; 2019, No. 315, § 2376.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2005 amendment inserted “Class A” preceding “misdemeanor” at the end of (c).

The 2019 amendment substituted “rules, and orders” for “rules, orders, and regulations” in (a).

23-2-406. Oaths — Testimony.

Any commissioner, secretary, or assistant secretary employed by the Arkansas Public Service Commission or the Arkansas Department of Transportation may administer oaths and take testimony.

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-130; Acts 2017, No. 707, § 99.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-2-407. Subpoenas for witnesses — Issuance and service.

Subpoenas for witnesses shall be issued by the secretary, assistant secretary, or any commissioner of the Arkansas Public Service Commission or the Arkansas Department of Transportation and shall be served as provided by law for the service of other subpoenas.

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-130; Acts 2017, No. 707, § 100.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-2-408. Subpoenas duces tecum.

The commission may require, by order served on any public utility in the manner provided in this act for the service of orders, the production within this state at such time and place as it may designate, of any books, accounts, papers, or records of the public utility, or of any affiliate of the utility relating to the public utility's business or affairs within the state, pertinent to any lawful inquiry and kept by the public utility or its affiliate in any office or place without this state.

History. Acts 1935, No. 324, § 28; Pope's Dig., § 2091; A.S.A. 1947, § 73-227.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-402.

Case Notes

Jurisdiction.

Supreme Court of Arkansas granted a gas utility company's writ of prohibition from a county court's denial of the company's motion to dismiss finding that the Arkansas Public Service Commission had sole and exclusive jurisdiction under § 23-4-201(a)(1) over Arkansas residential gas customers' claims that they were being charged too much for natural gas because of the company's alleged fraudulent conduct. Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007).

23-2-409. Subpoenas — Failure to comply — Penalty.

The failure or refusal of any witness to appear or to produce any books, papers, or documents required by the Arkansas Public Service Commission or the Arkansas Department of Transportation and to submit them to the inspection of the commission or the department or the refusal to answer any questions propounded by the commission or the department shall constitute a violation punishable by a fine of not less than fifty dollars ($50.00) nor more than five hundred dollars ($500).

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-130; Acts 2005, No. 1994, § 146; 2017, No. 707, § 101.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2005 amendment substituted “violation” for “misdemeanor.”

The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-2-410. Refusal to attend or testify — Contempt proceedings.

In case of failure on the part of any person to comply with any lawful order of the commission, of any commissioner, or of any examiner specifically designated to conduct an investigation, or to comply with any subpoena or subpoena duces tecum, or in case of failure to testify concerning any matter on which he or she may be lawfully interrogated, any court of record of general jurisdiction or a judge thereof, upon application of the commission or of any commissioner, may compel obedience by prosecuting proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from the court or of the refusal to testify therein.

History. Acts 1935, No. 324, § 23; Pope's Dig., § 2086; A.S.A. 1947, § 73-222.

Publisher's Notes. For definition of the terms “commission” and “commissioner”, see § 23-1-101.

Case Notes

Cited: Gatlin v. Missouri Pac. R.R., 631 F.2d 551 (8th Cir. 1980).

23-2-411. No person excused from testifying — Exemption from prosecution.

    1. No person shall be excused from testifying or from producing any book, document, paper, correspondence, or account in any investigation, inquiry by, or hearing before the commission or any commissioner or examiner when ordered to do so upon the ground that the testimony or evidence, book, document, paper, correspondence, or account required of him or her may tend to incriminate him or her or subject him or her to penalty or forfeiture.
    2. However, no person shall be prosecuted, punished, or subjected to any forfeiture or penalty for, or on account of, any act, transaction, matter, or thing concerning which he or she shall have been compelled under oath to testify or produce documentary evidence.
  1. No person so testifying shall be exempt from prosecution or punishment for any perjury committed by him or her in his or her testimony.

History. Acts 1935, No. 324, § 26; Pope's Dig., § 2089; A.S.A. 1947, § 73-225.

Publisher's Notes. For definition of the terms “commission” and “commissioner”, see § 23-1-101.

23-2-412. Depositions.

The commission, any commissioner, or any party to the proceedings in any investigation or hearing before the commission may cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for taking depositions in civil actions.

History. Acts 1935, No. 324, § 24; Pope's Dig., § 2087; A.S.A. 1947, § 73-223.

Publisher's Notes. For definition of the terms “commission” and “commissioner”, see § 23-1-101.

23-2-413. Perjury.

False testimony shall constitute perjury punishable as provided by law.

History. Acts 1945, No. 40, § 2; A.S.A. 1947, § 73-130.

23-2-414. Witness and mileage fees.

  1. Witnesses who are summoned before the commission shall be paid the same fees and mileage as are paid to witnesses in courts of record.
  2. Witnesses whose depositions are taken pursuant to the provisions of this act and the officer taking the deposition shall be entitled to the same fees as are paid for like services in such courts.
  3. Any party to a proceeding at whose instance a subpoena is issued and served shall pay the costs incident thereto and the fees and mileage of all his or her witnesses.
  4. The mileage and attendance fees shall be paid by the warrant of the Auditor of State, upon the presentation of the proper vouchers sworn to by the witness and approved by the chair of the commission.
    1. No witness shall be entitled to any witness fees or mileage if that witness:
      1. Is directly or indirectly interested in any railroad in this state or outside this state;
      2. Is in any way interested in any stock, bond, mortgage, security, or earnings of any such railroad; or
      3. Shall be the agent or employee of such a railroad, or any officer thereof, when summoned at the instance of the railroad.
    2. No witness furnished with free transportation shall receive pay for the distance he or she may have traveled on free transportation.

History. Acts 1899, No. 53, § 29, p. 82; C. & M. Dig., § 1688; Acts 1935, No. 324, § 23; Pope's Dig., §§ 1992, 2086; A.S.A. 1947, §§ 73-131, 73-222.

Publisher's Notes. For applicability of this section, see §§ 23-4-702 and 23-4-703.

As to the cumulative nature of the remedies given in Acts 1899, No. 53, see § 23-4-704.

For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-402.

Case Notes

Cited: Gatlin v. Missouri Pac. R.R., 631 F.2d 551 (8th Cir. 1980).

23-2-415. Hearings generally.

  1. In addition to the hearings specifically provided for by this act, the commission may conduct such other hearings as may be required or expedient in the administration of the powers and duties conferred upon it by this act.
  2. The commission shall fix the time and place of all hearings and shall serve notice of the hearing not less than ten (10) days before the time set for the hearing, unless the commission finds that public necessity requires that the hearing be held at an earlier date.
  3. At the time fixed for any hearing before the commission, a commissioner, or examiner, or the time to which any hearing may have been continued, the complainant and the person or corporation complained of shall be entitled in person or by attorney to be heard and to introduce evidence and to examine and cross-examine witnesses.

History. Acts 1935, No. 324, § 29; Pope's Dig., § 2092; A.S.A. 1947, § 73-228.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-402.

23-2-416. Hearings — Separation or consolidation of complaints.

  1. The commission, in its discretion, when a complaint is made concerning more than one (1) rate, charge, or service, may order separate hearings thereon at such times as it may prescribe.
  2. The commission may, for the purpose of a hearing, consolidate complaints when no injustice will arise from the consolidation.

History. Acts 1935, No. 324, § 25; Pope's Dig., § 2088; A.S.A. 1947, § 73-224.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

23-2-417. Burden of proof.

In all actions and proceedings arising under the provisions of this act, or growing out of the exercise of the authority and powers granted by this act to the commission, the burden of proof shall be upon the parties seeking to avoid compliance with the provisions of this act or with any findings, rules, regulations, or orders of the commission.

History. Acts 1935, No. 324, § 38; Pope's Dig., § 2101; A.S.A. 1947, § 73-237.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-402.

Case Notes

Cited: General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392; Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm'n, 25 Ark. App. 115, 752 S.W.2d 766 (1988).

23-2-418. Records of proceedings and testimony.

  1. A full and complete record shall be kept of all proceedings had before the Arkansas Public Service Commission, the Arkansas Department of Transportation, any commissioner, or any examiner on any formal investigation.
  2. All testimony shall be recorded by official reporters appointed by the commission or the department.

History. Acts 1935, No. 324, § 32; Pope's Dig., § 2095; Acts 1945, No. 40, § 2; A.S.A. 1947, §§ 73-127, 73-231; Acts 2017, No. 707, § 102.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Cross References. Publication of orders of commission, § 1-3-103.

Case Notes

Cited: Transport Co. v. Arkansas Transp. Comm'n, 255 Ark. 919, 504 S.W.2d 366 (1974).

23-2-419. Quorum.

    1. A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the Arkansas Public Service Commission.
    2. No one (1) vacancy for the time being in the commission shall impair the rights of the remaining commissioners to exercise all of the powers of the commission.
  1. The act of a majority of the commissioners shall be the act of the commission.

History. Acts 1935, No. 324, § 7; Pope's Dig., § 2070; A.S.A. 1947, § 73-128.

23-2-420. Orders, findings, rules, certificates, etc., under Acts 1935, No. 324, to be in writing — Copies as evidence.

  1. Every order, finding, authorization, rule, or certificate issued or approved by the commission under any provisions of this act shall be in writing and entered on the records of the commission, all of which shall be public records.
  2. A certificate under the seal of the commission that any such order, finding, authorization, rule, or certificate has not been modified, stayed, suspended, or revoked shall be received as evidence in all courts as to the facts therein stated.

History. Acts 1935, No. 324, § 32; Pope's Dig., § 2095; A.S.A. 1947, § 73-231; Acts 2019, No. 315, § 2377.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2019 amendment deleted “regulation” following “rule” in (a) and (b).

Meaning of “this act”. See note to § 23-2-402.

Case Notes

Judicial Notice of Commission Orders.

Arkansas Public Service Commission's orders are matters of public record under this section. Courts take judicial notice of public records that are required to be kept. Consequently, courts may take judicial notice of orders rendered by the Commission. Falcon Cable Media LP v. Ark. Pub. Serv. Comm'n, 2012 Ark. 463, 425 S.W.3d 704 (2012).

Record of Order.

Where there was no evidence of an order of the railroad commission prior to December 1 requiring the railroad to maintain a station and agent and the violation of the order was alleged to have been committed on November 26, a finding that the railroad violated the order was reversed. Chicago, Rock Island & Pac. Ry. v. State, 187 Ark. 1162, 60 S.W.2d 924 (1933) (decision under prior law).

23-2-421. Findings and orders of commission.

  1. The Arkansas Public Service Commission's decision shall be in sufficient detail to enable any court in which any action of the commission is involved to determine the controverted question presented by the proceeding.
  2. A copy of the order certified under the seal of the commission shall be served upon the person or corporation against whom it runs, or his or her or its attorney. Notice thereof shall be given to the other parties to the proceedings or their attorneys.
    1. The order shall take effect and become operative immediately upon the service thereof, unless otherwise provided, and shall continue in force either for a period which may be designated therein or until changed or revoked by the commission, or vacated upon review.
    2. If an order cannot, in the judgment of the commission, be complied with within the time fixed by the commission, the commission may grant and prescribe such additional time as in its judgment is reasonably necessary to comply with the order and may, on application and for good cause shown, extend the time for compliance fixed in the order.

History. Acts 1935, No. 324, § 30; Pope's Dig., § 2093; Acts 1973, No. 231, § 2; 1980 (2nd Ex. Sess.), No. 4, § 2; A.S.A. 1947, § 73-229.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law. Administrative Law, 4 U.Ark. Little Rock L.J. 157.

Case Notes

Burden of Proof.

In order to establish an absence of substantial evidence to support the commission's order, the Attorney General had the burden of showing that the proof before the commission was so nearly undisputed that fair-minded persons could not reach its conclusion. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

Findings of Fact.

In reviewing an order of the commission, the court must determine not whether the conclusions of the commission are supported by substantial evidence but whether its findings of fact are so supported. Arkansas Pub. Serv. Comm'n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978).

The Arkansas Public Service Commission erred in entering a protective order where it failed to make specific findings that the documents are nondisclosable based upon the information in the record; under subsection (a) of this section, § 23-2-316, and Commission Practice & Procedure Rule 13.05(b), it was necessary for the commission to find either that it was in the public interest or necessary to protect proprietary facts or trade secrets of the utility in order to seal the documents. Bryant v. Arkansas Pub. Serv. Comm'n, 45 Ark. App. 56, 871 S.W.2d 414 (1994).

Commission's findings held to satisfy the requirements of subsection (a) where the commission's decision was supported by substantial evidence and the total effect of the order was not unjust, unreasonable, unlawful, or discriminatory. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

An order entered by the Arkansas Public Service Commission did not contain adequate findings of fact where the order did not recite any evidence supporting the findings that the commission made and where the court did not have findings on the very issues that the parties litigated. Bryant v. Arkansas Pub. Serv. Comm'n, 62 Ark. App. 154, 969 S.W.2d 203 (1998).

In a proceeding to increase nongas rates, whether the month of April should have been included in the winter (peak) usage period that was relied on by the Arkansas Public Service Commission to support the 68.5% demand allocation was a finding that should have been made by the Commission and because the decision was insufficient for the court to make an adequate meaningful review as required by subsection (a) of this section, the action was remanded. The issue was properly before the Commission. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

Arkansas Public Service Commission complied with subsection (a) of this section when it gave a considered response that informed the parties of the basis for the order and indicated the reasoning by which the Commission reached its decision; the issue in the case was whether customers were overbilled for electricity usage, and whether the customers requested that the permanent service be activated was not directly relevant to whether they were overbilled for that service. Pressler v. Arkansas Pub. Serv. Comm'n, 2011 Ark. App. 512, 385 S.W.3d 349 (2011).

Cited: Bryant v. Arkansas Pub. Serv. Comm'n, 64 Ark. App. 303, 984 S.W.2d 61 (1998); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 68 Ark. App. 148, 5 S.W.3d 484 (1999).

23-2-422. Commission orders — Rehearings.

  1. Any party to a proceeding before the Arkansas Public Service Commission aggrieved by an order issued by the commission may apply for a rehearing within thirty (30) days after the date of mailing of the order of the commission.
  2. The application for rehearing shall set forth specifically the grounds upon which the application is based.
  3. Upon receiving the application, the commission shall have power to grant or deny rehearing, to abrogate or modify its order without further hearing, or to reopen the record for the purpose of receiving and considering additional evidence.
  4. Unless the commission acts upon the application for rehearing within thirty (30) days after it is filed, the application shall be deemed to have been denied.
  5. An order or decision made after the rehearing abrogating, changing, or modifying the original order or decision shall have the same force and effect as an original order or decision but shall not affect any right or the enforcement of any right arising from or by virtue of the original order or decision unless so ordered by the commission.

History. Acts 1973, No. 231, § 3; A.S.A. 1947, § 73-229.1; Acts 1991, No. 811, § 1.

Cross References. Refunds of excessive bonded rate collections, order not stayed during rehearing, § 23-4-415.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Case Notes

Aggrieved Party.

While the Supreme Court could find no prejudice resulting from the treatment of the staff as an adverse party before the commission in the case before it, the court did not generally approve of this situation which it regarded as giving an appearance of impropriety, and in other instances, prejudice may be demonstrated to have resulted from this apparent conflict. General Tel. Co. of Southwest v. Arkansas Pub. Serv. Comm'n, 295 Ark. 595, 751 S.W.2d 1 (1988).

Authority of Commission.

The Arkansas Public Service Commission acts in a legislative capacity and not in a judicial one, and therefore, the Supreme Court views the orders of the commission as having the same force as would an enactment of the General Assembly. Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980).

Due Process.

In an action to increase nongas rates, the brevity of time in which the Arkansas Public Service Commission approved a gas company's tariffs did not violate a consumer group's due process rights because the group was not deprived of the opportunity to petition for rehearing under subsection (a) of this section. The group did not identify any property right before the Commission or the court of which it had been deprived, and it did not show any prejudice. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

Rehearings.

Commission's staff may properly seek rehearing before the Arkansas Public Service Commission. General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392, aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988).

Notice of appeal may be filed within thirty days of one of two dates: (1) the date on which the Arkansas Public Service Commission (PSC) enters an order upon the application for rehearing, or (2) the date on which the application is deemed denied, and Ark. R. App. P. Civ. 4 does not apply; therefore, a motion to dismiss an appeal as untimely was denied because it was filed within 30 days of the PSC denying rehearing, even though the deemed denied date had already passed when the PSC decided to reconsider the case. Commercial Energy Users Group v. Arkansas Pub. Serv. Comm'n, 369 Ark. App. 13, 250 S.W.3d 225 (2007).

Scope of Review.

The granting or denial of a petition for a rehearing is a matter resting largely within the discretion of a regulatory agency in rate-setting cases, and the general rule is that the denial of a petition for rehearing by an agency such as the Arkansas Public Service Commission should be set aside on judicial review only for the clearest abuse of discretion. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

In addressing the questions of law raised on appeal, the court of appeals may not pass upon the wisdom of the Arkansas Public Service Commission's actions or judge whether the commission has appropriately exercised its discretion. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 19 Ark. App. 322, 720 S.W.2d 924 (1986).

The court of appeals does not advise the Arkansas Public Service Commission how to discharge its functions in arriving at findings of fact or in exercising its discretion, and its review of the reasonableness of the actions of the commission relates only to findings of fact and to a determination of whether its actions were arbitrary. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 19 Ark. App. 322, 720 S.W.2d 924 (1986).

Cited: Arkansas Pub. Serv. Comm'n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); Great Lakes Carbon Corp. v. Arkansas Pub. Serv. Comm'n, 31 Ark. App. 54, 788 S.W.2d 243 (1990); Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 70 Ark. App. 421, 19 S.W.3d 634 (2000).

23-2-423. Commission orders — Judicial review — Procedure.

    1. Any party to a proceeding before the Arkansas Public Service Commission aggrieved by an order issued by the commission in the proceeding may obtain a review of the order in the Court of Appeals. The review of the order may be had by filing in that court, within thirty (30) days after the order of the commission upon the application for rehearing or within thirty (30) days from the date the application is deemed to be denied as provided in § 23-2-422, a notice of appeal stating the nature of the proceeding before the commission, identifying the order complained of and the reasons why the order is claimed to be unlawful, and praying that the order of the commission be modified, remanded, or set aside in whole or in part.
    2. No proceeding to review any order of the commission shall be brought by any party unless that party has made application to the commission for a rehearing on the order.
    1. A copy of the petition shall immediately be transmitted by the Clerk of the Court of Appeals to the secretary of the Arkansas Public Service Commission. Thereupon, the commission, within thirty (30) days from the service of the notice, shall file with the Court of Appeals the record upon which the order complained of was entered.
    2. The record shall consist of a complete transcript of the record in the case made before the commission which shall include a copy of all pleadings, proceedings, testimony, exhibits, orders, findings, and opinions in the case. However, the parties and the commission may stipulate that only a specified portion of the record as made before the commission shall be included in the transcript to be filed with the Court of Appeals.
    1. Upon the filing of the petition, the court shall have original jurisdiction, which, upon the filing of the record with it, shall be exclusive, to affirm, modify, or set aside the order of the commission in whole or in part.
    2. No objection to any order of the commission shall be considered by the Court of Appeals unless the objection shall have been urged before the commission in the application for rehearing.
    3. The finding of the commission as to the facts, if supported by substantial evidence, shall be conclusive.
    4. The review shall not be extended further than to determine whether the commission's findings are supported by substantial evidence and whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the petitioner under the laws or Constitution of the United States or of the State of Arkansas.
    5. All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.
  1. The Court of Appeals, on review, shall advance commission cases as matters of public interest over all other civil cases except child custody cases, and appeals under the Workers' Compensation Law, § 11-9-101 et seq., and the Division of Workforce Services Law, § 11-10-101 et seq.
  2. Section 23-2-425 shall have no application to judicial review of orders of the commission.

History. Acts 1973, No. 231, §§ 3, 4; 1985, No. 770, § 1; A.S.A. 1947, §§ 73-229.1, 73-229.2; Acts 1991, No. 811, § 2; 2019, No. 910, § 570.

Amendments. The 2019 amendment substituted “Division of Workforce Services Law” for “Department of Workforce Services Law” in (d).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Case Notes

Construction.

This section is mandatory, and strict compliance with its provisions is necessary before any order of the Arkansas Public Service Commission may be reviewed by the Court of Appeals. Brown v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 258, 707 S.W.2d 780 (1986).

In General.

Judicial review of appeals from the Arkansas Public Service Commission is limited by the provisions of subdivisions (c)(3), (4), and (5) of this section, which define the standard of review as determining whether the commission's findings of fact are supported by substantial evidence, whether the commission has regularly pursued its authority, and whether the order under review violated any right of the appellant under the laws or the Constitutions of the State of Arkansas or the United States. Bryant v. Arkansas Pub. Serv. Comm'n, 46 Ark. App. 88, 877 S.W.2d 594 (1994).

This section and § 26-24-123 are easily distinguishable, inasmuch as this section pertains to public utility regulatory matters and § 26-24-123 governs judicial review on Arkansas Public Service Commission decisions concerning taxation matters. Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 307 Ark. 171, 818 S.W.2d 935 (1991).

Fact that customers were proceeding pro se before the Arkansas Public Service Commission did not warrant them special treatment because pro se parties were held to the same standard as a licensed attorney. Pressler v. Arkansas Pub. Serv. Comm'n, 2011 Ark. App. 512, 385 S.W.3d 349 (2011).

Allocation of Rates.

The commission does not have to rely on a particular cost-of-service study to decide how rates should be allocated among the various classes of customers, nor must the commission announce the method it used in the allocation. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Burden of Proof.

The burden was on local exchange carriers to justify revised tariffs and show without such rates they would be unable to earn their allowed rate of return. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

Collateral Attack.

The order or determination of an administrative body, acting within its jurisdiction and under authority of law, is not subject to collateral attack; this is so in the absence of fraud or bad faith, or, under some authority, even on the ground of fraud, since the only method of attack available is by appeal as provided by statute. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

Constitutional Rights.

Provisions of former similar section as to review of orders of commission were adequate to protect constitutional rights of telephone company which maintained integrated exchange serving subscribers in both Arkansas and another state and were “plain, speedy and adequate” within the meaning of the federal Johnson Act, so that federal district court did not have jurisdiction to enjoin rate order of commission relating to rates in Arkansas. General Tel. Co. v. Robinson, 132 F. Supp. 39 (E.D. Ark. 1955) (decision under prior law).

Local exchange carriers were not denied due process in proceedings before the Arkansas Public Service Commission, where the commission advised them of all issues before it and they were given the opportunity to present evidence to the commission in support of all the components of their proposed tariffs. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

Subsection (c)(4) of this section did not give the court jurisdiction to address the merits of the plaintiff's constitutional claims where the plaintiff did not argue that the Arkansas Public Service Commission failed to regularly pursue its authority and agreed with the commission that it lacked jurisdiction to decide the constitutional claims. AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. 177, 994 S.W.2d 494 (1999), aff’d in part, rev’d in part, 344 Ark. 188, 40 S.W.3d 273 (2001).

Customers were afforded due process because they had the opportunity to subpoena witnesses but failed to do so; the Arkansas Public Service Commission's Rules of Practice and Procedure provide that parties before the Commission may request subpoenas from the Commission to secure the testimony of witnesses, but those rules do not specify a time in which subpoenas are required to be served. Pressler v. Arkansas Pub. Serv. Comm'n, 2011 Ark. App. 512, 385 S.W.3d 349 (2011).

Discretion of Commission.

The commission has broad discretion in choosing an approach to rate regulation and is free, within its statutory authority, to make any reasonable adjustments which may be called for under particular circumstances. Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm'n, 25 Ark. App. 115, 752 S.W.2d 766 (1988).

In denying certain of the Attorney General's discovery requests in a suit involving a telephone company, the Arkansas Public Service Commission regularly pursued its authority. Bryant v. Arkansas Pub. Serv. Comm'n, 55 Ark. App. 125, 931 S.W.2d 795 (1996).

The commission has wide discretion in choosing its approach to rate regulation, and it is not bound by a particular method of evaluation. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

The appellate court is generally not concerned with the method used by the commission in calculating rates as long as the commission's action is based on substantial evidence and the total effect of the rate order is not unjust, unreasonable, unlawful, or discriminatory. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Entitlement to Review.

A city is entitled to review of order by commission even though no constitutional rights are violated, since proceedings might be regular, and still order could be void if arbitrary, unreasonable, and without substantial evidence. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952) (decision under prior law).

Utility is entitled to examination of order by commission, if order amounts to confiscation of property, or if order results in violation of constitutional rights under state and federal Constitutions. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952) (decision under prior law).

Jurisdiction.

An objection to an order of the Arkansas Public Service Commission may not be considered by this court unless the objection has been urged before the commission in the application for rehearing. Lavaca Tel. Co. v. Arkansas Pub. Serv. Comm'n, 65 Ark. App. 263, 986 S.W.2d 146 (1999).

Notice of Appeal.

Attorney General's notice of appeal regarding evidentiary issues held sufficient. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

Notice of appeal may be filed within thirty days of one of two dates: (1) the date on which the Arkansas Public Service Commission (PSC) enters an order upon the application for rehearing, or (2) the date on which the application is deemed denied, and Ark. R. App. P. Civ. 4 does not apply; therefore, a motion to dismiss an appeal as untimely was denied because it was filed within 30 days of the PSC denying rehearing, even though the deemed denied date had already passed when the PSC decided to reconsider the case. Commercial Energy Users Group v. Arkansas Pub. Serv. Comm'n, 369 Ark. App. 13, 250 S.W.3d 225 (2007).

Scope of Review.

Where one seeking review does not claim that the order of the Department of Public Utilities (now Arkansas Public Service Commission) complained of violated any of its constitutional rights, the review of such order should not extend further than to determine whether the department has regularly pursued its authority. Department of Pub. Utils. v. Arkansas La. Gas Co., 200 Ark. 983, 142 S.W.2d 213 (1940) (decision under prior law).

Allowance by commission would not be changed by court, since to do so would be to substitute opinion of court for opinion of commission. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952) (decision under prior law).

The court reviews the commission's findings on the record before the commission. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956) (decision under prior law).

The Arkansas Public Service Commission has broad legislative and administrative powers, and review of its findings and orders by the court is considerably limited in its extent. Incorporated Town of Emerson v. Arkansas Pub. Serv. Comm'n, 227 Ark. 20, 295 S.W.2d 778 (1956) (decision under prior law).

The granting or denial of a petition for a rehearing is a matter resting largely within the discretion of a regulatory agency in rate-setting cases, and the general rule is that the denial of a petition for rehearing by an agency such as the Arkansas Public Service Commission should be set aside on judicial review only for the clearest abuse of discretion. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

The judicial branch of the government must generally defer to the expertise of the Arkansas Public Service Commission; however, judicial review is not reduced to a formality, and it is for the courts to say whether there has been an arbitrary or unwarranted abuse of the commission's discretion, even though considerable judicial restraint should be observed in finding such an abuse. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

The courts may not pass upon the wisdom of the commission's actions or say whether the commission has appropriately exercised its discretion; however, it is for the courts to say whether there has been an arbitrary or unwarranted abuse of discretion, even though considerable judicial restraint should be observed in finding such an abuse, and the question of reasonableness of the commission's actions relates only to its findings of fact and to a determination of whether its action was arbitrary. Russellville Water Co. v. Arkansas Pub. Serv. Comm'n, 270 Ark. 584, 606 S.W.2d 552 (1980).

The scope of review by the court is very narrow and limited; on the other hand, the discretion of the commission is very broad. Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980).

The Arkansas Public Service Commission acts in a legislative capacity and not in a judicial one, and therefore, the appellate court views the orders of the commission as having the same force as would an enactment of the General Assembly. Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980).

In a telephone rate case, judicial inquiry is concluded if the total effect of the rate order is not unjust, unreasonable, unlawful or discriminatory. Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980).

The appellate court's duty under this section is to determine whether: (1) the Arkansas Public Service Commission's findings as to the facts are supported by substantial evidence; (2) the commission has regularly pursued its authority; and (3) the order or decision under review violated any of the telephone company's rights under the laws or constitutions of the United States or State of Arkansas. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986).

It is not the theory, but the impact, of the rate order that counts in determining whether rates are just, reasonable, and nondiscriminatory, and if the total effect of the rate order cannot be said to be unjust, unreasonable, or discriminatory, judicial inquiry is concluded and infirmities in the method employed are deemed unimportant. General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392, aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 24 Ark. App. 142, 751 S.W.2d 8 (1988); Contel of Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 37 Ark. App. 18, 822 S.W.2d 850 (1992).

Although § 23-2-103(b) required the Arkansas Public Service Commission to consider public hearing comments before issuing a decision about a rate increase, its failure to do so was a harmless error when the Commission addressed the comments in a later order and the State did not argue that the rate increase was not supported by substantial evidence, and therefore, prejudice to the residential ratepayers was not shown. Although the wording of § 23-2-103(b) does not state specifically that the Commission must have the transcript of the public comments before it issues its decision, that is clearly the intent of the statute. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

In an action to increase nongas rates, the Consumer Utilities Rate Advocacy Division of the Attorney General's Office obtained some testimony that the allocation of distribution mains' cost could have been lowered if relevant data was available, but that evidence was not sufficient to convince the court that the Arkansas Public Service Commission's adoption of its staff's customer allocation was not supported by substantial evidence as required by subdivisions (c)(3) and (4) of this section. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

In an action to increase nongas rates, the Arkansas Public Service Commission found that a gas company met its burden of producing sufficient evidence of real potential harm for abuse of the company's system and a consumer group did not demonstrate that the potential for abuse did not exist or offer evidence that the proposal was unreasonable. Therefore, under subsection (c) of this section, substantial evidence supported the Commission's decision to allow the company to lower the imbalance percentages. Consumers Utils. Rate Advocacy Div. v. Ark. Pub. Serv. Comm'n, 99 Ark. App. 228, 258 S.W.3d 758 (2007).

Public Service Commission (PSC) did not act err in declaring that an electric utility's recovery of storm restoration costs in the amount of $47 million would constitute improper, retroactive ratemaking, nor did it err in using a hypothetical debt-to-equity (D/E) ratio of 52/48 to establish the cost of capital instead of the utility's 44/56 D/E ratio; however, in calculating the dividends-payable balance, the PSC erred in using the utility's parent company's lag time. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. App. 147, 289 S.W.3d 513 (2008).

Because a university did not file a petition for rehearing from an administrative law judge's order, it could not argue on appeal that the order erroneously held that facilities agreements the university entered into with an energy company were void and unenforceable in their entirety. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 2011 Ark. App. 453, 384 S.W.3d 674 (2011).

Arkansas Public Service Commission (PSC) did not err in dismissing customer's complaint alleging that an energy company overcharged them for electric service because there was testimony that the meter on the customers' house was working properly and that the appliances installed in the home could have used the amount of electricity billed under the weather conditions during the time period in question; the administrative law judge specifically credited the testimony of a member of the PSC staff that there was no evidence that the company overbilled the customers or that it violated any of the PCS's rules. Pressler v. Arkansas Pub. Serv. Comm'n, 2011 Ark. App. 512, 385 S.W.3d 349 (2011).

—Performance of Functions.

Apart from the judicial review which may be resorted to, the Supreme Court (now Court of Appeals) will not advise the commission how to discharge its functions. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956) (decision under prior law).

In questions pertaining to the regular pursuit of Arkansas Public Service Commission's authority, the courts do have the power and duty to direct the commission in the performance of its functions insofar as it may be necessary to assure compliance by it with the statutes and constitutions. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

It is not for the courts to advise the Arkansas Public Service Commission how to discharge its functions in arriving at findings of fact or in exercising its discretion; on the other hand, it is clearly for the courts to decide the questions of law involved and to direct the commission where it has not pursued its authority in compliance with the statutes governing it or with the state and federal constitutions. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Local exchange carriers failed to show the Arkansas Public Service Commission failed to pursue its authority regularly because it engaged in single-issue rate making by considering in isolation the rate-of-return component of the algorithm for determining the Arkansas InterLATA Carrier Common Pool tariffs. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

—Substantial Evidence.

If the order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the courts to permit it to stand, even though they might disagree with the wisdom of the order. Department of Pub. Utils. v. Arkansas La. Gas Co., 200 Ark. 983, 142 S.W.2d 213 (1940); Allied Tel. Co. v. Arkansas Pub. Serv. Comm'n, 239 Ark. 492, 393 S.W.2d 206 (1965) (preceding decisions under prior law).

Order of commission will not be interfered with by the court, if supported by substantial evidence free from fraud and not arbitrary. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Incorporated Town of Emerson v. Arkansas Pub. Serv. Comm'n, 227 Ark. 20, 295 S.W.2d 778 (1956) (preceding decisions under prior law); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977).

Commission order held to be supported by substantial evidence. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Barnes v. Arkansas Pub. Serv. Comm'n, 235 Ark. 683, 362 S.W.2d 1 (1962) (preceding decisions under prior law); Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980); General Tel. Co. of Southwest v. Arkansas Pub. Serv. Comm'n, 295 Ark. 595, 751 S.W.2d 1 (1988).

Commission order not supported by substantial evidence. Arkansas Pub. Serv. Comm'n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978); Arkansas Oklahoma Gas Corp. v. Arkansas Pub. Serv. Comm'n, 301 Ark. 259, 783 S.W.2d 350 (1990).

In reviewing an order of the commission the court must determine, not whether the conclusions of the commission are supported by substantial evidence, but whether its findings of fact are so supported. Arkansas Pub. Serv. Comm'n v. Continental Tel. Co., 262 Ark. 821, 561 S.W.2d 645 (1978).

The Court of Appeals is not concerned with the methodology used by the Arkansas Public Service Commission in arriving at the result as long as its findings are based on substantial evidence. Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986); General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392, aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 24 Ark. App. 142, 751 S.W.2d 8 (1988); Contel of Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 37 Ark. App. 18, 822 S.W.2d 850 (1992).

The Arkansas Public Service Commission's refusal to set rates based on a times interest earned ratio (TIER), or designed to yield a TIER of at least 1.5 as requested by the telephone company, was not arbitrary, unreasonable, or unsupported by substantial evidence. Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

To establish an absence of substantial evidence to support a decision, the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

The proper standard of review on appeal of an assessment of an ad valorem property tax by the Arkansas Public Service Commission was whether the findings of the commission were supported by substantial evidence; de novo review was not appropriate, even though the commission's order decided a question of law. Ozark Gas Pipeline Corp. v. Ark. Pub. Serv. Comm'n, 342 Ark. 591, 29 S.W.3d 730 (2000).

—Testimony.

In reviewing the sufficiency of the evidence to support the stipulated rate allocation, it was appropriate to consider the stipulation itself as the functional equivalent of testimony that the rates included were just and reasonable. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

The evaluation of testimony in a rate case is for the Arkansas Public Service Commission, not the courts, and in order to hold that the testimony does not constitute substantial evidence, the court must find that the testimony has no rational basis. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Waiver of Objections.

Consumer which did not appeal decision of the Arkansas Public Service Commission granting a rate change within the required time could not collaterally attack the new rate schedules as discriminatory in an action against the utility and the commission. Commercial Printing Co. v. Arkansas Power & Light Co., 250 Ark. 461, 466 S.W.2d 261 (1971) (decision under prior law).

Although a utility argued that the Public Service Commission violated constitutional guarantees of due process by limiting the cross-examination of witnesses, the utility waived this argument on appeal by not making a timely objection below. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. App. 147, 289 S.W.3d 513 (2008).

Cited: Arkansas Pub. Serv. Comm'n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); Arkansas Charcoal Co. v. Arkansas Pub. Serv. Comm'n, 299 Ark. 359, 773 S.W.2d 427 (1989); Flower v. Arkansas Pub. Serv. Comm'n, 31 Ark. App. 155, 790 S.W.2d 183 (1990); Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm'n, 31 Ark. App. 217A, 791 S.W.2d 719 (1990); Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992); Lincoln v. Ark. Pub. Serv. Comm'n, 313 Ark. 295, 854 S.W.2d 330 (1993); Bryant v. Arkansas Pub. Serv. Comm'n, 50 Ark. App. 213, 907 S.W.2d 140 (1995); Bryant v. Arkansas Pub. Serv. Comm'n, 64 Ark. App. 303, 984 S.W.2d 61 (1998); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 68 Ark. App. 148, 5 S.W.3d 484 (1999); Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 70 Ark. App. 421, 19 S.W.3d 634 (2000); AT&T Communications of the Southwest, Inc. v. Arkansas Pub. Serv. Comm'n, 344 Ark. 188, 40 S.W.3d 273 (2001); Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 889 (2002); Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003); Hempstead County Hunting Club, Inc. v. Arkansas Pub. Serv. Comm'n, 2010 Ark. 221, 384 S.W.3d 477 (2010).

23-2-424. Commission orders — Rehearing or judicial review — Effect on order, stocks, etc.

    1. The filing of an application for rehearing under § 23-2-422 shall not, unless specifically ordered by the Arkansas Public Service Commission, operate as a stay of the commission's order.
    2. The commencement of proceedings under § 23-2-423 shall not, unless specifically ordered by the Court of Appeals, operate as a stay of the commission's order.
  1. The Court of Appeals may enter an order suspending or staying the operation of an order of the commission pending review of the order, provided the other parties are adequately secured against loss due to the delay in the enforcement of the order, in case the order involved is affirmed. The security is to take such form as shall be directed by the court.
    1. Any provision of this section, § 23-2-401, and §§ 23-2-421 — 23-2-423 notwithstanding, if the commission order involves rate changes which have already been made effective under bond pursuant to § 23-4-408, then the order shall take effect not less than twenty (20) days following service.
    2. If in this period an application for rehearing is filed, then the order shall be stayed until such time as the application is ruled on and any judicial appeals are concluded.
  2. Stocks or stock certificates, bonds, notes, or other evidences of indebtedness issued pursuant to and in accordance with an order of the commission shall be valid and binding in accordance with their terms, notwithstanding that the order of the commission may be or is later abrogated, vacated, changed, modified, or otherwise held to be wholly or partially invalid, unless, prior to issuance, the operation or effectiveness of the order has been stayed or suspended by the commission or a reviewing court.

History. Acts 1973, No. 231, § 3; 1985, No. 770, § 1; A.S.A. 1947, § 73-229.1; Acts 1987, No. 265, § 2.

Publisher's Notes. Acts 1987, No. 265, § 1, provided that it was not the intent of the legislature to require expiration of statutory time periods before a utility could issue valid stocks, bonds, notes, or other evidences of indebtedness.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Case Notes

Scope of Review.

The Arkansas Public Service Commission acts in a legislative capacity and not in a judicial one, and therefore, the Supreme Court views the orders of the commission as having the same force as would an enactment of the General Assembly. Arkansas Pub. Serv. Comm'n v. Lincoln-Desha Tel. Co., 271 Ark. 346, 609 S.W.2d 20 (1980).

Stay Pending Review.

Permanent injunction of circuit court (now Court of Appeals) restraining electric cooperative from taking any preliminary steps or action toward construction of plant as authorized by order of Arkansas Public Service Commission pending review of proceedings was too broad, hence order was modified on appeal by restraining the cooperative from construction or letting of contracts for construction of plant pending review. Arkansas Pub. Serv. Comm'n v. Arkansas-Missouri Power Co., 220 Ark. 39, 246 S.W.2d 117 (1952) (decision under prior law).

Notice of appeal may be filed within thirty days of one of two dates: (1) the date on which the Arkansas Public Service Commission (PSC) enters an order upon the application for rehearing, or (2) the date on which the application is deemed denied, and Ark. R. App. P. Civ. 4 does not apply; therefore, a motion to dismiss an appeal as untimely was denied because it was filed within 30 days of the PSC denying rehearing, even though the deemed denied date had already passed when the PSC decided to reconsider the case. Commercial Energy Users Group v. Arkansas Pub. Serv. Comm'n, 369 Ark. App. 13, 250 S.W.3d 225 (2007).

Cited: Arkansas Pub. Serv. Comm'n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981).

23-2-425. Appeals from department.

    1. Within thirty (30) days after the entry on the record of the Arkansas Department of Transportation of any order made by it, any party aggrieved may file a written motion with the secretary of the department praying for appeal from the order to the Pulaski County Circuit Court.
    2. Thereupon, the appeal shall be automatically deemed as granted as a matter of right without any further order.
    3. Upon the granting of the appeal, the secretary shall at once make a full and complete transcript of all proceedings had before the department in the matter and of all evidence before it in the matter, including all files therein.
    4. The secretary shall deposit the transcript in the office of the clerk of the circuit court immediately.
    5. The appeal shall be given preference over all other cases on the docket of the circuit court.
    6. Upon the filing of the motion of the appeal and at any time thereafter, the circuit court or its circuit judge shall have the right to issue such temporary or preliminary orders as to it or him or her may seem proper until a final decree is rendered.
    7. The circuit court shall thereupon review the order upon the record presented in the case and enter its finding and order thereon. It shall cause the order to be certified to the department immediately. The order shall direct that action be taken by the department in conformity with it unless an appeal from the order to the Supreme Court shall be taken within the time specified in subsection (b) of this section and in case of such an appeal to await further orders of the circuit court.
    1. Within thirty (30) days after rendition of any order of any circuit court under the terms of this act, whether such an order is rendered on appeal of municipal council action, city commission action, or department action, any party aggrieved may file a motion in writing in the circuit court or in the office of the clerk thereof praying an appeal from such an order to the Supreme Court.
    2. The motion, when so filed, shall be granted as a matter of right by the circuit court or by the clerk thereof.
    3. The appeal to the Supreme Court shall be governed by the procedure and reviewed in the manner applicable to other appeals from the circuit court. However, any finding of fact by the circuit court shall not be binding on the Supreme Court, and the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper, and equitable.
    4. The record shall be lodged in the office of the Clerk of the Supreme Court within sixty (60) days from the rendition of the order in the circuit court.
    5. All such cases shall be regarded and treated in the Supreme Court as cases involving public interest and shall be advanced and given preference on the docket of the court on motion of either party.

History. Acts 1921, No. 124, §§ 20, 21; Pope's Dig., §§ 2019, 2020; A.S.A. 1947, §§ 73-133, 73-134; Acts 2017, No. 707, § 103.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. In Moore v. Arkansas Transp. Co., 269 Ark. 202, 639 S.W.2d 725 (1980), it was held that the provisions of this section relating to the time for lodging a transcript with the office of the clerk of the Supreme Court were superseded by Arkansas Rules of Appellate Procedure, Rule 5.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a)(1).

Meaning of “this act”. Acts 1921, No. 124, codified as §§ 14-200-112, 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-2-425, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104.

Research References

Ark. L. Rev.

Mandamus to Review Administrative Action in Arkansas, 11 Ark. L. Rev. 352.

Judicial Review of Administrative Agencies in Arkansas, 25 Ark. L. Rev. 397.

Case Notes

Applicability.

This section has reference only to a party aggrieved on account of an order made by the commission involving regulation or operation of public utility and, therefore, had no applicability to action by school district for revision of tax assessment form. Little Rock Special Sch. Dist. v. Arkansas Pub. Serv. Comm'n, 210 Ark. 165, 194 S.W.2d 874 (1946).

This section controls the procedure for appeal from the circuit court to the Supreme Court in cases involving valuation assessments against a railroad by the tax division of the public service commission. Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

Appealable Orders.

An order of the commission refusing to direct assessment of personal property of railroad for tax purposes was an exercise of regulatory powers over public utilities, consequently an appeal to the circuit court from such order was permissible. North Little Rock Special School Dist. v. Koppers Co., 211 Ark. 322, 200 S.W.2d 519 (1947).

Commission's Findings and Conclusions.

If the trial court felt the need for amplified findings and conclusions by the commission, it should have remanded the matter to the commission for it to supply them from the record without holding further hearings. Moore v. Arkansas Transp. Co., 270 Ark. 831, 606 S.W.2d 575 (1980).

Erroneous Findings of Lower Court.

Where the trial court's judgment recited an erroneous finding, the Supreme Court was not required to affirm the judgment for want of a motion for new trial, since, there having been no trial, no motion for new trial was necessary, and since the error appeared on the face of the record no bill of exception was necessary. Ft. Smith Spelter Co. v. Clear Creek Oil & Gas Co., 153 Ark. 170, 239 S.W. 733 (1922).

Evidence.

Evidence sufficient to sustain the decision of the circuit court's reversal of the Arkansas Public Service Commission in refusing to issue certificate of public convenience to petitioning carrier. Arkansas Motor Freight Lines v. Batesville Truck Line, 214 Ark. 448, 216 S.W.2d 857 (1949).

Evidence sufficient to reverse action of Arkansas Commerce Commission and circuit court. National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S.W.2d 672 (1961).

Decision held not against preponderance of the evidence. Transport Co. v. Champion Transp., Inc., 298 Ark. 178, 766 S.W.2d 16 (1989).

Modification of Orders.

Where Arkansas Transportation Commission, in its brief, acquiesced to modification of its rules desired by plaintiff, a carrier company, no prejudicial error resulted from circuit court's modification of commission's order even if it actually lacked the legal authority to alter the order. Household Goods Carriers v. Ark. Transp. Comm'n, 262 Ark. 797, 562 S.W.2d 42 (1978).

Scope of Review.

Upon trial of the matters in issue upon an appeal from the corporation commission, the circuit court is not bound by the order of the commission and, upon appeal from the circuit court, the matter is presented to the Supreme Court upon the record made before the commission for trial of the same issues de novo, and the proceeding is not essentially different from the rules of law in regard to appeals from chancery court decrees. Motor Truck Transf., Inc. v. Southwestern Transp. Co., 197 Ark. 346, 122 S.W.2d 471 (1938).

Court's duty in reviewing order of the Corporation Commission is not the same as in reviewing order of the Department of Public Utilities (now Arkansas Public Service Commission); the hearing upon an order of the Corporation Commission is de novo. Missouri Pac. R.R. v. Williams, 201 Ark. 895, 148 S.W.2d 644 (1941).

If Arkansas Public Service Commission on hearing refuses to issue a certificate of public convenience to a carrier, and the decision of the commission is reversed by the circuit court, the Supreme Court on appeal will try the case de novo. Arkansas Motor Freight Lines v. Batesville Truck Line, 214 Ark. 448, 216 S.W.2d 857 (1949).

Supreme Court will try a case de novo in determining whether Arkansas Public Service Commission was justified in issuing a certificate to petitioner, but will not proceed, as though the commission did not exist, as the commission had the benefit of seeing and hearing the witness whereas the court decided on the record, so that if evidence before the commission was sufficient to justify finding of commission as to matters involved in the petition, the court on appeal will sustain the finding of the commission. Wisinger v. Stewart, 215 Ark. 827, 223 S.W.2d 604 (1949).

Proper scope of judicial review of fact findings of Arkansas Public Service Commission is to inquire as to whether decision of the commission is contrary to the weight of the evidence. Missouri Pac. Transp. Co. v. Inter City Transit Co., 216 Ark. 95, 224 S.W.2d 372 (1949).

When the legislature has set up a fact-finding body authorized to issue or withhold permits and such body has had the advantage of hearing witnesses testify, the courts are slow to set aside the body's findings; however, an appeal from the decision of the Commerce Commission is tried de novo on the record, and the Supreme Court may and shall review all the evidence and make such findings of fact and law as the court may deem just, proper, and equitable. National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S.W.2d 672 (1961).

The finding of the Commerce Commission and the circuit court denying a permit to applicant should be affirmed unless it appears to be contrary to the preponderance of the testimony. National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S.W.2d 672 (1961).

It is the function of the Supreme Court to inquire whether the determination of the commission is contrary to the weight of the evidence, but, in so doing, it must not lightly regard the findings of the commission. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967).

Supreme Court reviews the record de novo but must affirm the order of the commission if the order is not against the preponderance of the evidence. Torrans v. Arkansas Commerce Comm'n, 246 Ark. 930, 440 S.W.2d 558 (1969).

Error of trial court in applying the “substantial evidence” rule rather than the “weight of evidence” rule in trial de novo proceedings which affirmed commission's denial of application to haul goods intrastate was not prejudicial to applicant, as Supreme Court on appeal also reviews the record de novo and is required to determine whether the decision of the commission was contrary to the preponderance of evidence. Torrans v. Arkansas Commerce Comm'n, 246 Ark. 930, 440 S.W.2d 558 (1969).

Stay of Orders.

Circuit court was entitled to stay order of commission pending hearing and determination of review where private electric utility company in seeking appeal based same on provisions of this section, since court could issue temporary order under the section. Arkansas Pub. Serv. Comm'n v. Arkansas-Missouri Power Co., 220 Ark. 39, 246 S.W.2d 117 (1952).

Time for Appeal.

Appeal from action of Corporation Commission in fixing ad valorem assessment not filed within 60 days from date of judgment should be dismissed; time in which to perfect appeal runs from date of judgment rather than from order overruling motion for a new trial. Graysonia, Nashville & Ashdown R.R. v. Arkansas Corp. Comm'n, 202 Ark. 589, 151 S.W.2d 665 (1941).

When the legislature fixes a short time for appeal in a particular type of case, and such time so fixed is reasonable, then the short time so fixed must govern rather than the long time allowed by the general appeal statute. Kansas City S. Ry. v. Ark. Commerce Comm'n, 230 Ark. 663, 326 S.W.2d 805 (1959).

Transcripts.

It was not an abuse of discretion to refuse to dismiss the appeal for delay of the secretary in filing the transcript not caused by the appellant. Van Buren Waterworks v. City of Van Buren, 152 Ark. 83, 237 S.W. 696 (1922); Arkansas R.R. Comm'n v. Graysonia, Nashville & Ashdown R.R., 169 Ark. 13, 272 S.W. 850 (1925).

Insofar as the provisions of this section relating to the time for lodging a transcript in the office of the clerk of the Supreme Court are concerned, they are superseded by Arkansas Rules of Appellate Procedure, Rule 5. Moore v. Arkansas Transp. Co., 269 Ark. 202, 639 S.W.2d 725 (1980).

Cited: Ark. State Bd. of Pharmacy v. Patrick, 243 Ark. 967, 423 S.W.2d 265 (1968); Batesville Truck Lines v. Arkansas Freightways, Inc., 286 Ark. 116, 689 S.W.2d 553 (1985); Purolator Courier Corp. v. Arkansas Air Courier, 289 Ark. 455, 712 S.W.2d 892 (1986); Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991).

23-2-426. Amendment or rescission of commission's decisions.

  1. The commission may at any time, and from time to time, after notice, and after opportunity to be heard as provided in the case of complaints, rescind or amend by order any decision made by it.
  2. Any order rescinding or amending a prior order or decision, when served upon the public utility affected and the other parties to the proceedings, shall have the same force and effect as is provided in this act for original orders or decisions. However, no such order shall affect the legality or validity of any acts done by the public utility or others before service upon it or them of the notice of the change.

History. Acts 1935, No. 324, § 31; Pope's Dig., § 2094; A.S.A. 1947, § 73-230.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Case Notes

Cited: Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981); General Tel. Co. of Southwest v. Arkansas Pub. Serv. Comm'n, 295 Ark. 595, 751 S.W.2d 1 (1988).

23-2-427. Orders, rules, etc., of department not controverted in actions between private person and railroad company.

In all actions between private parties and railroad companies brought under Acts 1899, No. 53, the rates, charges, orders, rules, regulations, and classifications prescribed by the Arkansas Department of Transportation before the institution of the action shall be held, deemed, and accepted to be reasonable, fair, and just, and in such respects shall not be controverted therein.

History. Acts 1901, No. 24, § 1, p. 53; C. & M. Dig., § 858; Pope's Dig., § 1062; A.S.A. 1947, § 73-137; Acts 2017, No. 707, § 104.

A.C.R.C. Notes. A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-2-428. Costs of actions.

  1. The commission shall not be required in any suits brought by it under the terms of this act to advance or make deposits to cover costs of such suits, nor shall it be required to give bond for such costs, or indemnity, stay, injunction, or other mesne process.
  2. In all cases of contest before the commission, the unsuccessful party shall be taxed with the costs unless otherwise ordered by the board of commissioners.

History. Acts 1899, No. 119, § 5, p. 194; C. & M. Dig., § 1697; Acts 1935, No. 324, § 38; Pope's Dig., §§ 1999, 2101; A.S.A. 1947, §§ 73-132, 73-237.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-2-402.

Case Notes

Cited: General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392.

23-2-429. Investigation, inquiry, or hearing by commissioner or examiner.

  1. Any investigation, inquiry, or hearing which the commission has power to undertake or hold may be undertaken or held by or before any commissioners or examiners designated for that purpose by the commission.
  2. The evidence in any investigation, inquiry, or hearing may be taken by any commissioner, or commissioners, or examiners to whom the investigation, inquiry, or hearing has been assigned.
  3. Every finding, opinion, and order made by a commissioner, or commissioners, or examiners, when approved or confirmed by the commission, shall be the finding, opinion, and order of the commission.

History. Acts 1935, No. 324, § 7; Pope's Dig., § 2070; A.S.A. 1947, § 73-128.

Publisher's Notes. For definition of the terms “commission” and “commissioners”, see § 23-1-101.

23-2-430. Effect of repeal of § 23-2-404.

The repeal of § 23-2-404 by Acts 1997, No. 1311, shall not be construed as depriving or expanding the current authority of the Attorney General to represent and bring complaints on behalf of customers of utilities in Arkansas.

History. Acts 1997, No. 1311, § 2.

Chapter 3 Regulation of Utilities and Carriers Generally

Research References

ALR.

Validity and construction of statutes or ordinances regulating telephone answering services. 35 A.L.R.3d 1430.

State regulation of radio paging service. 44 A.L.R.4th 216.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority. 85 A.L.R.4th 894.

Incidental provision of transportation services, by party not primarily in that business, as common carriage subject to state regulatory control. 87 A.L.R.4th 638.

Public service commission's implied authority to order refund of public utility revenues. 41 A.L.R.5th 783.

Validity, construction, and application of state statute giving carrier lien of goods for transportation and incidental storage charges. 45 A.L.R.5th 227.

Am. Jur. 13 Am. Jur. 2d, Carriers, § 26 et seq.

64 Am. Jur. 2d, Pub. Util., § 15 et seq.

C.J.S. 13 C.J.S., Carriers, § 17 et seq. and § 329 et seq.

73B C.J.S., Pub. Util., § 13 et seq.

U. Ark. Little Rock L.J.

Legislative Survey, Utilities, 8 U. Ark. Little Rock L.J. 611.

Subchapter 1 — General Provisions

Effective Dates. Acts 1889, No. 34, § 4: effective on passage.

Acts 1911, No. 87, § 16: approved Mar. 8, 1911. Emergency clause provided: “This law being necessary for the immediate preservation of the public peace, health and safety shall be in force from and after its passage.”

Acts 1919, No. 264, § 3: approved Mar. 13, 1919. Emergency declared.

Acts 1921, No. 124, § 27: approved Feb. 15, 1921. Emergency declared.

Acts 1925, No. 254, § 2: approved Mar. 27, 1925. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared, and this act shall take effect and be in force from and after its passage.”

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1945, No. 40, § 6: Feb. 12, 1945. Emergency clause provided: “It has been found and is hereby declared by the General Assembly of the state of Arkansas that revenues to be collected in the future will be materially diminished, and it has also been found that there is urgent need for immediate economies and more efficient operation of the various departments of state; and that consolidation of the agencies hereinbefore provided will make for more efficient operation and, at the same time, effect such economies that the foreseen diminution of future revenues will, in part, be offset by the economies so to be effected by such consolidation; and that only the enactment of this bill will provide such economies and efficient operation. Therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after the date of its passage and approval.”

Acts 1949, No. 262, § 9: Mar. 9, 1949. Emergency clause provided: “It has been found by the General Assembly of the State of Arkansas that certain public utilities now subject to regulation by the Arkansas Public Service Commission are required by law to pay certain fees to the Commission while other public utilities which are equally subject to regulation by the Commission are exempt from the payment of such fees. It is further found and declared to be just and equitable that each public utility subject to regulation by the Commission should bear its fair proportion of the expenses incident to such regulation. There is urgent need for more rigid enforcement of the safety rules and regulations on the highways of this state, particularly as they relate to the motor carrier laws, rules and regulations pertaining thereto. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after the date of its passage and approval.”

Acts 1965, No. 4, § 3: Jan. 25, 1965. Emergency clause provided: “It has been found and is declared by the General Assembly of the State of Arkansas that many industrial consumers of utility services in this State must be able to compute their cost of utility services in order to plan new construction of industrial facilities, and to enter into agreements for financing same; that the industrial development of the State will be enhanced by authorizing utilities to enter into contracts with such customers, which will continue in force for a definite term; that this Act will encourage substantial expansion of industrial facilities and will provide employment and growth opportunities and is necessary for the public peace, health, welfare and safety. Therefore, an emergency is declared to exist and this Act shall take effect and be in force from and after its passage and approval.”

Acts 1965, No. 11, § 2: Feb. 1, 1965. Emergency clause provided: “Whereas the economic growth and development taking place in this state has greatly increased the demand for electric power and energy in this state and the present and foreseeable future demands require that a substantial amount of additional facilities for the generation, transmission and distribution of electric power and energy be acquired, constructed and devoted to public use, and whereas, some light and power companies of other states serving customers in Arkansas have experienced, or may reasonably be expected to experience, difficulty in providing such facilities since they do not possess under the laws of the State of Arkansas the same powers and prerogatives that are conferred on light and power companies organized under the laws of Arkansas, an emergency is hereby found and declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in full force from and after its passage and approval.”

Acts 1981, No. 709, § 3: Mar. 24, 1981. Emergency clause provided: “The General Assembly hereby determines that there is an immediate and urgent need to effect revisions in the Public Utility Regulations of the State and that this Act accomplishes the same. Therefore, an emergency is hereby declared to exist, and this Act being immediately necessary for the preservation of the public peace, health and safety shall become effective from and after its passage and approval.”

Acts 1985, No. 758, § 5: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Public Service Commission to enforce the laws which it is charged to administer has been interpreted on occasion not to include quasi-judicial authority to vindicate public rights. This interpretation has resulted in delay of justice in the courts, and may as a practical matter have denied justice to ratepayers and utilities. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 831, § 4: Apr. 8, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that substantial uncertainty exists with respect to the interpretation and application of Subsections E and F of Section 3 of Act 40 of 1945 to wholesale sellers of electricity to electric cooperative corporations and that as a result of such uncertainty, the fees assessed against certain utilities are unfair and represent a double assessment on the same units of electricity; that clarification of Act 40 will provide an immediate, direct, and substantial benefit to the ratepayers of such utilities by lowering overall costs; and that this Act will provide necessary clarity to Act 40. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 204, § 19: Feb. 21, 2003. Emergency clause provided: “It is found and determined by the Eighty-fourth General Assembly that certain provisions of the Electric Consumer Choice Act of 1999, as amended by Act 324 of 2001, for the implementation of retail electric competition may take effect prior to ninety-one (91) days after the adjournment of this session; that this act is intended to prevent such implementation; and that unless this emergency clause is adopted, this act may not go into effect until further steps have been taken toward retail electric competition, which the General Assembly has found not to be in the public interest. The General Assembly further finds that uncertainty surrounding the implementation of the Electric Consumer Choice Act during the ninety (90) days following the adjournment of this session and uncertainty regarding the recovery of reasonable generation costs, could discourage electric utilities from acquiring additional generation resources; that retail electric customers will require such resources; and that this act, in Section 11 and elsewhere, provides procedures to facilitate the acquisition of these resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

23-3-101. Organization or reorganization.

  1. Organizations or reorganizations of all public utilities shall be subject to the supervision and control of the Arkansas Public Service Commission or the Arkansas Department of Transportation.
    1. No organization or reorganization shall be had or given effect without the written approval of the commission or the department.
    2. No plan of organization or reorganization shall be approved by the commission or the department unless it shall be established by the applicant for approval that the plan is consistent with the public interest.

History. Acts 1935, No. 324, § 56; Pope's Dig., § 2116; A.S.A. 1947, § 73-252; Acts 2017, No. 707, § 105.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

23-3-102. Consolidations, stock purchases in another utility, or rentals of additional property.

  1. With the consent and approval of the Arkansas Public Service Commission, but not otherwise:
    1. Any two (2) or more public utilities may consolidate with each other;
    2. Any public utility may acquire the stock or any part thereof of any other public utility;
    3. Any public utility may sell, acquire, lease, or rent any public utility plant or property constituting an operating unit or system; and
    4. A public utility may acquire, lease, or rent a plant or property constituting an operating unit or system, including any such plant or property owned by the public utility's affiliate or by another entity.
    1. Application for the approval and consent of the commission shall be made by the interested public utility and shall contain a concise statement of the proposed action, the reasons therefor, and such other information as may be required by the commission.
    2. Upon the filing of an application, the commission shall investigate it, with or without public hearing, and in case of a public hearing, upon such notice as the commission may require. If it finds that the proposed action is consistent with the public interest, it shall give its consent and approval in writing.
    3. In reaching its determination, the commission shall take into consideration the reasonable value of the property, plant, equipment, or securities of the utility to be acquired or merged.
  2. No public utility shall sell, lease, rent, or otherwise transfer, in any manner, control of electric transmission facilities in this state without the approval of the commission, provided that the approval is required only to the extent the transaction is not subject to the exclusive jurisdiction of the Federal Energy Regulatory Commission or any other federal agency.
  3. Any transaction required by this section to be submitted to the commission for its consent and approval shall be void unless the commission shall give its consent and approval thereto in writing.
    1. All transactions among or between a regulated electric public utility and any of its divisions, components, or affiliates that are not regulated by the commission shall be subject to such rules as may be promulgated by the commission so that:
      1. All such transactions that involve regulated services shall be subject to the rates, terms, and conditions specified in tariffs approved by the commission; and
      2. An electric utility shall not use any revenue from any regulated asset, operation, or service to subsidize the provision of any unregulated electric service or any other unregulated activity.
    2. However, the provisions of this subsection shall not apply to any transactions involving an electric cooperative formed under the Electric Cooperative Corporation Act, § 23-18-301 et seq., in which:
      1. The membership of such a cooperative approves the transaction; and
      2. In the case of subdivision (e)(1)(B) of this section, the commission has not disallowed the transaction within sixty (60) days after the filing of a notice with the commission in writing of the proposed transaction by the cooperative.

History. Acts 1935, No. 324, § 57; Pope's Dig., § 2117; A.S.A. 1947, § 73-253; Acts 2003, No. 204, § 7; 2015, No. 736, § 1.

A.C.R.C. Notes. Acts 2003, No. 204, § 16, provided:

“Nothing in this act shall alter or diminish the Arkansas Public Service Commission's authority under otherwise applicable law.”

Amendments. The 2003 amendment made a stylistic change in (a); inserted present (c); redesignated former (c) as present (d); and added (e).

The 2015 amendment added (a)(4).

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Junean, Constitutional Law, 9 U. Ark. Little Rock L.J. 111.

Case Notes

Abandonment of Property.

A public utility may not abandon any part of its property devoted to public service without the consent of the state, or transfer its property to someone else and be rid of duty to serve the public. North Little Rock Water Co. v. Waterworks Comm'n, 199 Ark. 773, 136 S.W.2d 194 (1940).

Duty of Purchaser.

When a public service corporation sells and transfers its property serving a certain community, the transferee succeeds to the obligation of the transferor serving the community, and when a municipality, with power to do so, purchases a distribution system serving a certain community, the purchasing municipality would be compelled to continue the service. North Little Rock Water Co. v. Waterworks Comm'n, 199 Ark. 773, 136 S.W.2d 194 (1940).

Sale of Utility.

Commission in passing upon question as to whether sale of public utility should be approved has jurisdiction to determine whether council meeting approving sale was a valid council meeting. Southwestern Gas & Elec. Co. v. Hatfield, 219 Ark. 515, 243 S.W.2d 378 (1951).

The commission is not required, in assessing a proposed sale of utility assets, to use fair market value as the only criterion of value in considering whether to allow its consummation. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm'n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).

Scope of Inquiry.

Arkansas Public Service Commission and the courts on appeal could consider matters raised by suit, since plaintiff had a full, adequate, complete and expeditious remedy to present each of the questions before the commission and on appeal to the circuit court and then to the Supreme Court. McGehee v. Mid S. Gas Co., 235 Ark. 50, 357 S.W.2d 282 (1962).

Cited: Middle S. Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404 (8th Cir. 1985).

23-3-103. Stocks, bonds, notes, etc., and creation of liens — Regulation by commissions.

    1. The power of public utilities to issue stocks, stock certificates, bonds, notes, and other evidences of indebtedness in case of public utilities incorporated under the laws of this state and to create liens on property in this state in case of public utilities incorporated under the laws of any state or foreign country is a special privilege, the right of supervision, regulation, restriction, and control of which is, and shall continue to be, vested in the state.
    2. The power of public utilities described in subdivision (a)(1) of this section shall be exercised as provided by law and under such rules as the Arkansas Public Service Commission may prescribe.
  1. In instances where the public utility is also a regional transmission organization that is jurisdictional to the Federal Energy Regulatory Commission and the debt is authorized by the Federal Energy Regulatory Commission and does not create a lien on property in this state, no commission authorization is required.

History. Acts 1935, No. 324, § 58; Pope's Dig., § 2118; A.S.A. 1947, § 73-254; Acts 2015, No. 899, § 1; 2019, No. 315, § 2378.

Amendments. The 2015 amendment inserted designations (a)(1) and (a)(2); rewrote (a)(2); and added (b).

The 2019 amendment deleted “and regulations” following “rules” in (a)(2).

Case Notes

Construction.

Sections 23-3-104 — 23-3-107 (Acts 1935, No. 324, § 59) must be read in conjunction with this section (Acts 1935, No. 324, § 58), as well as any other provisions of Acts 1935, No. 324, and the various amendments thereto, whenever appropriate so as to give full effect to the intention of the General Assembly. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Classification of Utilities.

A fair reading of §§ 23-3-10423-3-107 in light of this section reveals that the legislature intended two classifications of utilities to be made when it enacted the language of these sections into law: first, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state; second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a special privilege consisting of the power, under the supervision and control of the state, to create liens on property in this state. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Utilities Incorporated Elsewhere.

Where a public utility which is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon, nor otherwise encumber, any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the commission is not required under §§ 23-3-10423-3-107. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

23-3-104. Stocks, bonds, notes, etc. — Issuance.

    1. When authorized by order of the commission, and not otherwise, a public utility may issue stock, bonds, notes, or other evidence of indebtedness payable at periods of more than thirty-six (36) months after the date of issuance when necessary for:
      1. The acquisition of property, the construction, extension, or improvement of its facilities, or the improvement of its service;
      2. The discharge or lawful refunding of its obligations, or reimbursement of moneys actually expended from the income from any source; or
      3. Any of such purposes.
    2. The order of the commission shall fix the maximum amount of any such issue and the purposes to which it or any proceeds up to the stated maximum amount are to be applied.
    3. No public utility shall apply any such issue or its proceeds to any purpose not specified in the order without the consent of the commission.
  1. The public utility may issue notes for proper corporate purposes and not in violation of any provision of law, payable at periods of not more than thirty-six (36) months, without the consent of the commission. However, no such note, in whole or in part, shall be refunded by any issue of stock or bonds or by any evidence of indebtedness with a maturity date later than thirty-six (36) months from the date of issue without the consent of the commission.
  2. All securities issued without the approval of the commission shall be void.
  3. In instances where the public utility is a regional transmission organization that is jurisdictional to the Federal Energy Regulatory Commission and the debt is authorized by the Federal Energy Regulatory Commission and does not create a lien on property in this state, no commission authorization is required.

History. Acts 1935, No. 324, § 59; Pope's Dig., § 2119; Acts 1973, No. 410, § 1; 1981, No. 709, § 1; A.S.A. 1947, § 73-255; Acts 2015, No. 899, § 2.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2015 amendment added (d).

Case Notes

Construction.

This section and §§ 23-3-10523-3-107 (Acts 1935, No. 324, § 59) must be read in conjunction with § 23-3-103 (Acts 1935, No. 324, § 58), as well as any other provisions of Acts 1935, No. 324, and the various amendments thereto, whenever appropriate so as to give full effect to the intention of the General Assembly. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Classification of Utilities.

A fair reading of this section and §§ 23-3-10523-3-107 in light of the provisions of § 23-3-103 reveals that the legislature intended two classifications of utilities to be made when it enacted the language of these sections into law: first, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state; second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a special privilege consisting of the power, under the supervision and control of the state, to create liens on property in this state. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Utilities Incorporated Elsewhere.

Where a public utility which is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon, nor otherwise encumber, any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the commission is not required under this section and §§ 23-3-10523-3-107. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Cited: Middle S. Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404 (8th Cir. 1985).

23-3-105. Stocks, bonds, notes, etc. — Amount of issue.

The commission shall have no power to authorize the issuance of stocks, notes, bonds, or other evidence of indebtedness of any public utility in an aggregate amount at any time exceeding the fair value of the properties of the issuer and the reasonable cost of the issuance and sale of the issues.

History. Acts 1935, No. 324, § 59; Pope's Dig., § 2119; Acts 1973, No. 410, § 1; 1981, No. 709, § 1; A.S.A. 1947, § 73-255.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Case Notes

Construction.

This section and §§ 23-3-104, 23-3-106, and 23-3-107 (Acts 1935, No. 324, § 59) must be read in conjunction with § 23-3-103 (Acts 1935, No. 324, § 58), as well as any other provisions of Acts 1935, No. 324, and the various amendments thereto, whenever appropriate so as to give full effect to the intention of the Arkansas General Assembly. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Classification of Utilities.

A fair reading of this section and §§ 23-3-104, 23-3-106, and 23-3-107 in light of the provisions of § 23-3-103 reveals that the legislature intended two classifications of utilities to be made when it enacted the language of these sections into law: first, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state; second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a special privilege consisting of the power, under the supervision and control of the state, to create liens on property in this state. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Utilities Incorporated Elsewhere.

Where a public utility which is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon, nor otherwise encumber, any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the commission is not required under this section and §§ 23-3-104, 23-3-106, and 23-3-107. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Cited: Middle S. Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404 (8th Cir. 1985).

23-3-106. Stocks, bonds, notes, etc. — Disposition of proceeds.

The commission shall have the power to require every public utility, other than municipalities, to account for the disposition of the proceeds of all sales of stocks, bonds, notes, or other evidence of indebtedness, in such form and detail as it may deem advisable. Also, the commission shall have the power to establish such rules as it may deem necessary to insure the disposition of the proceeds for the purpose specified in its order.

History. Acts 1935, No. 324, § 59; Pope's Dig., § 2119; Acts 1973, No. 410, § 1; 1981, No. 709, § 1; A.S.A. 1947, § 73-255; Acts 2019, No. 315, § 2379.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in the second sentence.

Case Notes

Construction.

This section and §§ 23-3-104, 23-3-105, and 23-3-107 (Acts 1935, No. 324, § 59) must be read in conjunction with § 23-3-103 (Acts 1935, No. 324, § 58), as well as any other provisions of Acts 1935, No. 324, and the various amendments thereto, whenever appropriate so as to give full effect to the intention of the General Assembly. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Classification of Utilities.

A fair reading of this section and §§ 23-3-104, 23-3-105, and 23-3-107 in light of the provisions of § 23-3-103 reveals that the legislature intended two classifications of utilities to be made when it enacted the language of these sections into law: first, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state; second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a special privilege consisting of the power, under the supervision and control of the state, to create liens on property in this state. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Utilities Incorporated Elsewhere.

Where a public utility which is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon nor otherwise encumber any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the commission is not required under this section and §§ 23-3-104, 23-3-105, and 23-3-107. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Cited: Middle S. Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404 (8th Cir. 1985).

23-3-107. Stocks, bonds, notes, etc. — Liability of state.

No provision of this act and no deed or act done or performed under or in connection therewith shall be construed to obligate the State of Arkansas to pay or guarantee, in any manner whatsoever, any stock, bond, note, or other evidence of indebtedness authorized, issued, or executed under the provisions of this act.

History. Acts 1935, No. 324, § 59; Pope's Dig., § 2119; Acts 1973, No. 410, § 1; 1981, No. 709, § 1; A.S.A. 1947, § 73-255.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

Construction.

This section and §§ 23-3-10423-3-106 (Acts 1935, No. 324, § 59) must be read in conjunction with § 23-3-103 (Acts 1935, No. 324, § 58), as well as any other provisions of Acts 1935, No. 324, and the various amendments thereto, whenever appropriate so as to give full effect to the intention of the General Assembly. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Classification of Utilities.

A fair reading of this section and §§ 23-3-10423-3-106 in light of the provisions of § 23-3-103 reveals that the legislature intended two classifications of utilities to be made when it enacted the language of these sections into law: first, the General Assembly classified public utilities “incorporated under the laws of this state” and conferred upon those utilities the “special privilege” of having the power to issue “stocks, stock certificates, bonds, notes and other evidences of indebtedness” under the supervision and regulation of the state; second, the General Assembly classified public utilities “incorporated under the laws of any state or foreign country” into another category and conferred upon those utilities a special privilege consisting of the power, under the supervision and control of the state, to create liens on property in this state. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Utilities Incorporated Elsewhere.

Where a public utility which is incorporated under the laws of another state and is providing services within the State of Arkansas seeks to issue indebtedness which will neither create a lien upon nor otherwise encumber any utility assets in this state, and where the effect of that indebtedness on rates may be adequately addressed in the normal course of ratemaking by the Arkansas Public Service Commission, approval and other supervision of the issue by the commission is not required under this section and §§ 23-3-10423-3-106. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 30, 727 S.W.2d 384 (1987).

Cited: Middle S. Energy, Inc. v. Arkansas Pub. Serv. Comm'n, 772 F.2d 404 (8th Cir. 1985).

23-3-108. Domestication of foreign railroad, pipeline, or electric light and power corporations.

    1. Before any foreign railroad corporation, foreign pipeline corporation, or foreign light and power corporation organized for the purpose of generating, transmitting, distributing, or supplying electricity to or for the public for compensation or for public use shall be permitted to avail itself of the benefits of this section and §§ 23-11-302, 23-11-401, 23-11-402, and 23-11-404, or any part thereof, the corporation shall file with the Secretary of State a certified copy of its articles of incorporation or articles of organization, if incorporated or organized under a general law of the state or territory, or a certified copy of the statute laws of the state or territory incorporating or organizing the company where the charter of the railroad, pipeline, or light and power corporation was granted by special statute of the state.
    2. Upon the filing of its articles of incorporation, articles of organization, or its charter and payment of the fees prescribed by law for railroad, pipeline, or light and power charters, the railroad, pipeline, or light and power company, for all intents and purposes, shall become a railroad, pipeline, or light and power corporation of this state, subject to all the laws of this state, the same as if it were formally incorporated or organized in this state, anything in its articles of incorporation, articles of organization, or charter to the contrary notwithstanding.
    3. Such acts on the part of the corporation shall be conclusive evidence of the intent of the corporation to create and become a domestic corporation.
  1. In all suits or proceedings instituted against any domesticated corporation, process may be served upon the agent of the corporation in this state in the same manner that process is authorized by law to be served upon the agents of railroad, pipeline, or light and power corporations organized and existing under the laws of this state.

History. Acts 1889, No. 34, § 2, p. 43; C. & M. Dig., § 8424; Acts 1925, No. 254, § 1; Pope's Dig., § 10998; Acts 1965, No. 11, § 1; A.S.A. 1947, § 73-427; Acts 2001, No. 1291, § 11.

Amendments. The 2001 amendment, in (a)(1), substituted “any foreign … foreign light” for “any railroad, pipeline, or light,” deleted “of any other state or territory” preceding “organized for the purpose,” substituted “or supplying … for public use” for “electric power and energy for public use,” and inserted “or organizing”; inserted “or articles of organization” in (a)(1)-(2); inserted “or organized” in (a)(1)-(2); and deleted “with a map and profile of the proposed line” preceding “and payment of the fees” in (a)(2).

Cross References. Office to be kept in state showing stock transactions, Ark. Const., Art. 17, § 2.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

Case Notes

Eminent Domain.

A railroad corporation organized in a sister state, on complying with this section and §§ 23-11-302, 23-11-401, 23-11-402, and 23-11-404, becomes a domestic corporation and empowered to exercise the right of eminent domain. Russell v. St. Louis, Sw. Ry., 71 Ark. 451, 75 S.W. 725 (1903).

This section does not apply to power lines and therefore a foreign power-line company which had complied with laws authorizing it to do business in state could not condemn land. Southwestern Gas & Elec. Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W.2d 636 (1929).

A corporation may be foreign for the purposes of diversity jurisdiction yet be treated as domestic and capable of exercising the power of eminent domain under state law. Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996).

When a foreign railroad corporation files a certified copy of its articles of incorporation with the secretary of state and complies with certain other requirements, it becomes a railroad of the state the same as if it were formally incorporated in the state, and as such, it acquires the power to condemn private property in Arkansas. Union Pac. R.R. v. 174 Acres, 193 F.3d 944 (8th Cir. 1999).

Jurisdiction.

This section is merely a domestication statute and does not render a foreign corporation a citizen of Arkansas for the purposes of diversity jurisdiction. Missouri Pac. R.R. v. 55 Acres of Land, 947 F. Supp. 1301 (E.D. Ark. 1996).

A corporation may be made a “domestic corporation” under this section, but it does not thereby become a citizen of the state, nor does this “domestication” affect the jurisdiction of the federal courts on a question of diverse citizenship. Union Pac. R.R. v. 174 Acres, 193 F.3d 944 (8th Cir. 1999).

State Laws Applicable.

Under § 23-11-403, providing that if a railway company of another state should lease a railroad in this state it should be subject to regulations governing railroads in this state, such a railroad would become subject to statutory regulation requiring construction of stockguards. St. Louis & S.F.R.R. v. Hale, 82 Ark. 175, 100 S.W. 1148 (1907); Chicago, Rock Island & Pac. Ry. v. Fitzhugh, 82 Ark. 179, 100 S.W. 1149 (1907).

23-3-109. Annual statements of gross earnings.

  1. Annually, during the month of March, each utility subject by law to the payment of fees or charges under the jurisdiction of either the Arkansas Public Service Commission or the Arkansas Department of Transportation shall prepare and transmit to the commission or the department having jurisdiction over the utility a certified statement of the gross earnings from its properties in Arkansas for the preceding calendar year ending December 31.
  2. No deduction shall be made from the gross earnings on account of any payments, expenses, or uncollectible accounts, except refunds occasioned by errors or overcharge.
  3. Upon receipt of these certified statements, the commission or the department shall determine the total gross earnings of all of the utilities.
  4. However, any utility may deduct from its gross earnings any amounts derived from wholesale sales of electricity to any other utility, an electric cooperative corporation, or any other entity at wholesale rates regulated by the Arkansas Public Service Commission or the Federal Energy Regulatory Commission.

History. Acts 1945, No. 40, § 3; 1949, No. 262, § 7; A.S.A. 1947, § 73-248; Acts 1987, No. 831, § 1; 2017, No. 707, § 106.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957).

23-3-110. Annual fees generally.

    1. There is levied and charged and there shall be collected annually from each utility subject by law to the payment of fees or charges under the jurisdiction of either the Arkansas Public Service Commission or the Arkansas Department of Transportation a fee in an amount equivalent to that proportion of the total utilities costs that the gross earnings of each of the utilities bear to the total gross earnings of all utilities.
    2. However, the fee to be collected annually from each of the utilities shall not exceed, in any year, an amount exceeding two-fifths of one percent (2/5 of 1%) of the gross earnings of each respective utility.
    3. In determining the amount of any fee for any individual utility pursuant to this subsection, the amount of gross earnings subject to the levy shall be reduced by any amounts derived from the sale of electricity to any other utility, an electric cooperative corporation, or any other entity at wholesale rates regulated by the Arkansas Public Service Commission or the Federal Energy Regulatory Commission.
    1. After determining the amount of the fee due to be paid by each of the utilities, the commission or the department having jurisdiction shall, annually on or before August 15, prepare and transmit to each of the utilities a statement of the fees due for utilities costs during the preceding fiscal year.
    2. Thereafter, on or before August 31, each of the utilities shall pay to the secretary of the commission or the department having jurisdiction all fees shown to be due by the statements.
  1. On receipt of the fees and charges, the secretary shall pay them into the State Treasury, and the amounts so received by the Treasurer of State shall be credited by him or her to the General Revenue Fund Account of the State Apportionment Fund.
  2. In the event any utility fails or refuses to pay the fees provided for in this section on or before August 31, the commission or the department having jurisdiction shall add to the fee a penalty of twenty-five percent (25%) thereof and certify the amount of the delinquent tax and penalty to the Attorney General for collection.

History. Acts 1945, No. 40, § 3; A.S.A. 1947, §§ 73-249, 73-250; Acts 1987, No. 831, § 2; 2017, No. 707, § 107.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. For explanation of the term “utilities costs,” see § 23-2-108(b)(1).

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” and deleted “which shall be” preceding “equivalent” in (a)(1).

Case Notes

Purpose.

The legislature intended that the regulatory functions of the Arkansas Public Service Commission be supported by the fee imposed by this section and based on revenues generated from only intrastate services. Arkansas Pub. Serv. Comm'n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981).

Interstate Revenues.

The annual fee collected from each utility by the Arkansas Public Service Commission pursuant to this section, and based on the utility's “gross earnings” as defined in § 23-1-101, applies only to intrastate services provided by the utility, since the plain language of § 23-1-101 calls for assessment only on services “supplied in this state”; accordingly, the commission could not impose the fee on the interstate telephone revenues of a telephone company. Arkansas Pub. Serv. Comm'n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981).

Cited: Alltel Mobile Communications, Inc. v. Arkansas Pub. Serv. Comm'n, 63 Ark. App. 197, 975 S.W.2d 884 (1998).

23-3-111. Fees — Foreign companies doing intrastate business.

  1. All foreign railroad, street, interurban, or other transportation companies now doing intrastate business, or desiring to engage in intrastate business, or authorized to engage in intrastate business, before being permitted to continue to do intrastate business or authorized to engage in intrastate business, shall pay the same fees as are required of like domestic corporations.
    1. Every foreign express company, sleeping car company, and private car company doing intrastate business or seeking to do intrastate business in Arkansas, before being permitted to continue to do intrastate business or authorized to engage in intrastate business, shall pay one dollar ($1.00) for every mile of railroad over which the corporation does, or proposes to do, intrastate business in this state.
    2. If any such corporation operates over more miles of railroad in the transaction of its business after the payment of the first fee, it shall pay an additional fee at the same rate provided by subdivision (b)(1) of this section.

History. Acts 1911, No. 87, §§ 7, 9; C. & M. Dig., §§ 1808, 1810; A.S.A. 1947, §§ 73-425, 73-426.

23-3-112. Forms sent to utilities to be filled out and returned.

  1. Any public utility receiving from the commission any blanks with directions to fill the blanks shall cause the blanks to be properly filled out so as to answer fully, specifically, and correctly every question therein propounded.
    1. Answers shall be verified under oath by the president, secretary, superintendent, or general manager of the public utility and returned to the commission at its office within a reasonable time, or within the period fixed by the commission.
    2. In case the public utility is unable to answer any questions, it shall give a good and sufficient reason for such a failure.

History. Acts 1935, No. 324, § 55; Pope's Dig., § 2115; A.S.A. 1947, § 73-251.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

23-3-113. Adequate service, facilities, etc., to be provided.

  1. Every public utility shall furnish, provide, and maintain such adequate and efficient service, instrumentalities, equipment, and facilities as shall promote the safety, health, comfort, requirements, and convenience of its patrons, employees, and the public.
  2. Every person, firm, or corporation engaged in a public service business in this state shall establish and maintain adequate and suitable facilities, safety appliances, or other suitable devices and shall perform such service in respect thereto as shall be reasonable, safe, and sufficient for the security and convenience of the public and the safety and comfort of its employees, and, in all respects, just and fair, and without any unjust discrimination or preference.

History. Acts 1919, No. 571, § 6; C. & M. Dig., § 1611; Acts 1921, No. 124, § 4; 1935, No. 324, § 10; Pope's Dig., §§ 2003, 2073; A.S.A. 1947, §§ 73-116, 73-204.

Publisher's Notes. Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Case Notes

Duty of Care.

This section codifies a duty to act with reasonable care in the delivery of service; that duty being to act reasonably under the circumstances not to cause harm. Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994).

There is, without question, a duty to act reasonably when supplying power. Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994).

Utility companies have a duty to inspect and maintain their own equipment, but those companies are not held liable for injuries that cannot be reasonably foreseen. Bellanca v. Arkansas Power & Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994).

Facilities.

The railroad commission had jurisdiction to require railroads to construct sheds over platforms along their tracks for the convenience of the traveling public in going to and from trains. St. Louis-S.F. Ry. v. Albright, 176 Ark. 761, 4 S.W.2d 910 (1928).

Particular Circumstances.

District court properly granted summary judgment to a power company in an action resulting from the death of two men who were electrocuted when an aluminum tent pole came in contact with a power line because the evidence did not show that the company knew or should have known about the risk of an accident like the one which killed the men. Koch v. Southwestern Elec. Power Co., 544 F.3d 906 (8th Cir. 2008).

Special Services.

A telephone company is not liable for special damages for failure to furnish a patron special service to another patron unless there is some contract between the parties, wherein the telephone company accepts the contract with the special conditions attached thereto. Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948).

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957); Litton Sys. v. Southwestern Bell Tel. Co., 539 F.2d 418 (5th Cir. 1976); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 824 F.2d 672 (8th Cir. 1987).

23-3-114. Unreasonable preferences prohibited.

    1. As to rates or services, no public utility shall make or grant any unreasonable preference or advantage to any corporation or person or subject any corporation or person to any unreasonable prejudice or disadvantage.
    2. No public utility shall establish or maintain any unreasonable difference as to rates or services, either as between localities or as between classes of service.
  1. The commission, in the exercise of its jurisdiction granted by this act, may fix uniform rates applicable throughout the territory served by any public utility whenever in its judgment public interest requires such uniform rates.
  2. The commission may determine any question or fact arising under this section.

History. Acts 1935, No. 324, § 13; Pope's Dig., § 2076; A.S.A. 1947, § 73-207.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-3-107.

Cross References. Forwarding freight over connecting lines, preferences prohibited, exceptions, § 23-10-411.

Case Notes

Late Charges.

A public utility's late charge, far from being an exaction of excessive interest for the loan or forbearance of money, was in fact a device to require delinquent rate-payers to bear, as nearly as could be determined, the exact collection costs resulting from their tardiness in paying their bills, thereby automatically classifying consumers to avoid discrimination. Coffelt v. Arkansas Power & Light Co., 248 Ark. 313, 451 S.W.2d 881 (1970).

Rate Differences.

This section does not prohibit differences in rates; it merely prohibits unreasonable rate differences. Wilson v. Arkansas Pub. Serv. Comm'n, 278 Ark. 591, 648 S.W.2d 63 (1983); Bryant v. Arkansas Pub. Serv. Comm'n, 50 Ark. App. 213, 907 S.W.2d 140 (1995).

Evidence sufficient to find that the Arkansas Public Service Commission properly held that the cost differential was a reasonable basis upon which the gas company could charge certain customers a higher price. Wilson v. Arkansas Pub. Serv. Comm'n, 278 Ark. 591, 648 S.W.2d 63 (1983).

A rate-making agency may establish different rates for different classes of customers. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 216, 727 S.W.2d 146 (1987).

Allocation approved did not unreasonably discriminate against residential customers; commission had balanced cost and noncost factors and made choices among public policy alternatives. Bryant v. Arkansas Pub. Serv. Comm'n, 50 Ark. App. 213, 907 S.W.2d 140 (1995).

Evidence supported the commission's approval of reduced “corridor rates” for industrial customers who would otherwise bypass the utilities resulting in even higher rates for residential customers; corridor rates are a just and reasonable response to the threat of bypass. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Although the Attorney General's office argued that Arkansas Public Service Commission's approval of an agreement to a gas company's rate hike was unreasonable and discriminatory, substantial evidence, including witness testimony, supported the Commission's decision to approve the agreement. Consumer Utils. Rate Advocacy Div. v. Arkansas Pub. Serv. Comm'n, 86 Ark. App. 254, 184 S.W.3d 36 (2004).

Refusal to Provide Service.

Action of public utility in refusing to supply water to plaintiff businesses located within one hundred feet of its water line, on grounds that another, Class C, utility had an exclusive franchise under a certificate of necessity and convenience to supply water to the plaintiffs, was in violation of this section because the deregulation of Class C water utilities in 1987 nullified by implication any exclusive franchises which may otherwise have existed under such a certificate. Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996).

—Use of Risk Multiplier.

Use of risk or rate of return multiplier, which is defined as a ratio of a customer class's rate of return to the overall rate of return allowed the utility, of any number other than 1.0 is not unlawful per se. Use of a risk multiplier whereby any customer class with a risk multiplier in excess of 1.0 would be paying a higher proportional rate of return in its overall electric rate than would a customer class with a risk multiplier of less than 1.0, is not unreasonable where supported by evidence. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm'n, 20 Ark. App. 216, 727 S.W.2d 146 (1987).

Standard of Review.

The appellate court must review the total effect of a rate order, and if the total effect cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Cited: Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992); Lincoln v. Ark. Pub. Serv. Comm'n, 313 Ark. 295, 854 S.W.2d 330 (1993).

23-3-115. Wires transmitting electricity or messages over public or private ways.

Every public utility which owns, operates, manages, or controls along or across any public or private way any wires over which electricity or messages are transmitted shall construct, operate, and maintain the wires and the equipment used in connection therewith in a reasonably adequate and safe manner and so as not to unreasonably interfere with the service furnished by other public utilities.

History. Acts 1935, No. 324, § 50; A.S.A. 1947, § 73-267.

Publisher's Notes. Acts 1979, No. 365 provided that for a period of four years after March 12, 1979, the Arkansas Public Service Commission would have no authority to require that power and communication utility facilities and distribution systems be installed underground in residential subdivisions. The determination of where to install the systems rested with the developer and the installing utility, and a method of establishing and allocating the cost differential was prescribed. The act did not limit the authority of municipalities to regulate the installation of utility distribution systems within the municipalities.

Case Notes

Burden of Proof.

Where the plaintiff tripped and fell because of a loose wire lying upon a public sidewalk, she did not meet the burden of proof that the defendant was in violation of this section. Haggans v. Jonesboro Cable TV, Inc., 252 Ark. 191, 477 S.W.2d 840 (1972).

Cited: Department of Pub. Utils. v. McConnell, 198 Ark. 502, 130 S.W.2d 9 (1939).

23-3-116. Power, water, gas, or electricity — Violation of municipal franchise — Penalties — Damages.

    1. Whenever a person, company, or corporation which has secured a franchise from any municipality in this state to furnish power, water, gas, or electricity to the municipality and to consumers thereof, fails or refuses to keep, erect, or use due diligence to maintain reasonably adequate facilities or instrumentalities to enable it to carry out its contractual obligations with the municipality and the consumers therein, and negligently or willfully fails or refuses to furnish an adequate supply of the utility it has contracted and agreed to furnish and provide, then, and in every such case, the person, company, or corporation so failing or refusing shall be subject to a penalty of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each day the negligent or willful failure or refusal continues to exist. Each day shall constitute a separate offense.
    2. The penalty shall be recovered by the city attorney of any municipality in a suit instituted by him or her, or by the prosecuting attorney filing information in behalf of the state for the use and benefit of the municipality affected, in a court of competent jurisdiction, from any such utility because of the negligent or willful failure or refusal of such a person, company, or corporation to furnish an adequate supply of the utility as provided by its contract.
  1. Any person or consumer of the utility having a contract with the utility for service, upon the failure or refusal of the utility, shall have the right to institute a suit in his or her own behalf in a court of competent jurisdiction and recover compensatory damages for the failure or refusal in whatsoever amount the proof may show he or she has been damaged.
  2. This section shall not apply to cities or towns of a population of less than three thousand (3,000) persons that have granted franchises for electric current for lighting and other purposes that is furnished by manufacturing establishments not solely engaged in the manufacture of electric current for lighting and other purposes.

History. Acts 1919, No. 264, § 1; C. & M. Dig., § 7549; Pope's Dig., § 9623; A.S.A. 1947, § 73-213.

23-3-117. Contracts for interruptible service with industrial users.

Public utilities are authorized to contract for the sale, on an interruptible basis, of utility services at agreed prices for a definite term not to exceed twenty-five (25) years with customers whose use of the service is for manufacturing, generation, processing, preparation of products, or industrial purposes. However, the contracts shall be subject to approval by the Arkansas Public Service Commission before becoming effective. These contracts, after approval by the commission, shall continue in full force and effect for the term thereof.

History. Acts 1965, No. 4, § 1; A.S.A. 1947, § 73-275.

23-3-118. Rates, charges, or service — Investigations.

  1. Whenever the commission believes that any rate or charge may be unreasonable or unjustly discriminatory, that any service is inadequate, or that an investigation of any matter relating to any public utility should for any reason be made, it may on its own motion and with or without notice, make a preliminary investigation.
  2. If, after making the preliminary investigation, the commission believes that sufficient grounds exist to justify a formal investigation of and hearing on the matters preliminarily investigated, it shall make an order to that effect.
  3. Thereupon, proceedings shall be had, conducted, and concluded in reference to the matters in like manner as though complaint had been filed with the commission.

History. Acts 1935, No. 324, § 16; Pope's Dig., § 2079; A.S.A. 1947, § 73-215.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Case Notes

Cited: Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948); Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001).

23-3-119. Complaints.

    1. Any chamber of commerce or board of trade, mercantile, agricultural, or manufacturing association, any public utility, any municipality, any customer of a public utility, any person unlawfully treated by a public utility, or any public utility unlawfully treated by a customer, may complain to the commission in writing. The complaint shall set forth any act or thing done or omitted to be done by any public utility or customer in violation, or claimed violation, of any order, law, or regulation which the commission has jurisdiction to administer.
    2. Any consumer or prospective consumer of any utility service may complain to the commission with respect to the service, furnishing of service, or any discrimination with respect to any service or rates.
  1. Every complainant shall, before filing a complaint, make a good faith effort to informally resolve with the respondent the situation complained of. The complainant shall allege and describe, in his or her complaint, his or her efforts to achieve an informal resolution, including all informal resolution procedures which may be prescribed by commission rule or by approved tariffs.
  2. On the filing of the complaint, the commission shall cause a copy thereof to be served upon the respondent.
  3. The commission shall then have the authority, upon timely notice, to conduct investigations and public hearings, to mandate monetary refunds and billing credits, or to order appropriate prospective relief as authorized or required by law, rule, regulation, or order. The jurisdiction of the commission in such disputes is primary and shall be exhausted before a court of law or equity may assume jurisdiction. However, the commission shall not have the authority to order payment of damages or to adjudicate disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.
    1. A utility may collect an award under this section by charging the complainant on his or her regular utility bill. Failure to pay shall be grounds for termination of service.
    2. The commission may order a utility to pay an award under this section in the form of one (1) or more billing credits. In the case of a former customer complainant, the commission may require a cash payment.
    1. It is the specific intent of the General Assembly in enacting the 1985 amendment to this section to vest in the Arkansas Public Service Commission the authority to adjudicate individual disputes between consumers and the public utilities which serve them when those disputes involve public rights which the commission is charged by law to administer.
    2. Public rights which the commission may adjudicate are those arising from the public utility statutes enacted by the General Assembly and the lawful rules, regulations, and orders entered by the commission in the execution of the statutes. The commission's jurisdiction to adjudicate public rights does not and cannot, however, extend to disputes in which the right asserted is a private right found in the common law of contracts, torts, or property.
    3. The commission's quasi-judicial jurisdiction to adjudicate public rights and claims in individual cases is in addition to the commission's traditional legislative authority to act generally and prospectively in the interest of the public. The quasi-judicial commission authority recognized in this section is a legitimate function and does not, in the judgment of the General Assembly, constitute an unlawful delegation of judicial authority under either the Arkansas Constitution or the United States Constitution.

History. Acts 1935, No. 324, § 17; Pope's Dig., § 2080; Acts 1985, No. 758, §§ 1, 2; A.S.A. 1947, §§ 73-216, 73-216n.

Publisher's Notes. This section was originally enacted as part of Acts 1935, No. 324, which vested regulatory authority over “public utilities” in the Department of Public Utilities of the Arkansas Corporation Commission. “Public utilities” as defined in the act (see § 23-1-101) includes carriers as well as electric, gas, water, and telephone utilities, etc. The duties of the Department of Public Utilities were then divided between the Arkansas Public Service Commission, which regulated utilities, and the Arkansas Transportation Commission, which regulated carriers. (See Publisher's Notes to chapter 2.) However, the Arkansas Transportation Commission was subsequently abolished by Acts 1987, No. 572. See Publisher's Notes to Chapter 2, Subchapter 2 of this title. Consequently, the references to “public utilities” in this section refer, by definition, to carriers as well as utilities, and references to “the commission” should refer to both commissions. However, the declaration of legislative intent which accompanied the 1985 amendment to this section and which is codified as subsection (f) of this section appears to limit the operation of the amendment to the Arkansas Public Service Commission.

Case Notes

In General.

The commission is a creature of the legislature and its duties are primarily legislative and administrative, not judicial. Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992), aff'd, 313 Ark. 295, 854 S.W.2d 330 (1993).

This section does not prevent the Arkansas Public Service Commission from hearing class actions. Brandon v. Arkansas Pub. Serv. Comm'n, 67 Ark. App. 140, 992 S.W.2d 834 (1999).

This section does not authorize the Arkansas Public Service Commission to award attorney’s fees. Brandon v. Arkansas Pub. Serv. Comm'n, 67 Ark. App. 140, 992 S.W.2d 834 (1999).

Applicability.

Where the “public right” that petitioner was seeking to have enforced was competitive electric service, the commission correctly found that petitioner's complaint was outside the scope of this section. Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992), aff'd, 313 Ark. 295, 854 S.W.2d 330 (1993).

Jurisdiction.

Rights involving a specific regulation of the commission, and affecting the delivery, measurement and cost of electrical power supplied to a consumer, fall within the primary jurisdiction of the public service commission. Ozarks Elec. Coop. Corp. v. Harrelson, 301 Ark. 123, 782 S.W.2d 570 (1990).

This section does not extend the Arkansas Public Service Commission's jurisdiction to allow it to declare § 23-18-101 unconstitutional. Lincoln v. Arkansas Pub. Serv. Comm'n, 40 Ark. App. 27, 842 S.W.2d 51 (1992), aff'd, 313 Ark. 295, 854 S.W.2d 330 (1993).

To the extent that matter involved a dispute over rates charged by power company, its resolution fell within the purview and jurisdiction of the public service commission. Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 907 S.W.2d 741 (1995).

In customer's class action suit against a public service commission and several gas utilities challenging surcharges she paid as a result of an illegal policy implemented by the commission regarding low-income assistance, the trial court properly dismissed customer's claims as the relief she was seeking was a refund, which was within the jurisdiction of the commission to resolve under subsection (d) of this section; contrary to customer's assertion, the surcharges were not a tax but a mechanism by which the utilities could recover some of the bad debt incurred as a result of the implementation of the policy in question. Austin v. Centerpoint Energy ARKLA, 365 Ark. 138, 226 S.W.3d 814 (2006).

Supreme Court of Arkansas granted a gas utility company's writ of prohibition from a county court's denial of the company's motion to dismiss finding that the Arkansas Public Service Commission had sole and exclusive jurisdiction under § 23-4-201(a)(1) over Arkansas residential gas customers' claims that they were being charged too much for natural gas because of the company's alleged fraudulent conduct. Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007).

Because the circuit court's refusal to dismiss the representative of the Arkansas consumers was not in compliance with the court's prior decision ruling, which determined that the Arkansas Public Service Commission had sole and exclusive jurisdiction over the claims as they related to the Arkansas customers, the court granted a writ of mandamus and directed the circuit court to dismiss the representative of the Arkansas consumers; the jurisdiction of the Arkansas Public Service Commission in rate disputes was primary and had to be exhausted before a court of law or equity could assume jurisdiction. Centerpoint Energy, Inc. v. Miller County Circuit Court, 372 Ark. 343, 276 S.W.3d 231 (2008).

When an electric cooperative's customers alleged the utility failed to refund patronage capital to the customers, the customers' claims were properly dismissed due to the customers' failure to seek relief from the Arkansas Public Service Commission because (1) it was alleged that the cooperative violated a duty to pay capital credits “on a reasonable and systematic basis,” (2) the main relief sought was a refund of those credits, (3) the commission had primary jurisdiction over claims that the cooperative violated § 23-18-327 and was authorized by subsection (d) of this section to order appropriate prospective relief, and (4) the customers' claims were not private damage claims based on tort, contract, or property law. Capps v. Carroll Elec. Coop. Corp., 2011 Ark. 48, 378 S.W.3d 148 (2011).

When an electric cooperative's customers who were Missouri residents alleged the utility failed to refund patronage capital to the customers, the customers' claims were properly dismissed due to the customers' failure to seek relief from the Arkansas Public Service Commission because (1) the customers did not allege a claim under Missouri law, and (2) the claims were based on an alleged failure of the cooperative to comply with Arkansas law, specifically § 23-18-327. Capps v. Carroll Elec. Coop. Corp., 2011 Ark. 48, 378 S.W.3d 148 (2011).

Circuit court erred in dismissing the property owners' complaint against an electric company and in finding that the Arkansas Public Service Commission had primary jurisdiction of the case; there was no dispute that the company had a right to use its own existing lines to transmit broadband services, but the owners' issue was with the company's entry onto their land to install completely new lines for broadband services without just compensation or an assessment of damages for the increased interference. The circuit court had exclusive, original jurisdiction to adjudicate a dispute involving private-property rights and damages for inverse condemnation and increased interference. Stanley v. Ozarks Elec. Coop. Corp., 2019 Ark. App. 560, 591 S.W.3d 322 (2019).

Rates.

The only discretion the commission has in connection with the giving of notice as to change in rates is to require the utility to give notice to one or more of the interested parties enumerated in this section, it being important to bear in mind that the procedure under §§ 23-4-402 and 23-4-620 apparently envisions a full-scale rate hearing which might involve months and the expenditure of thousands of dollars. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Review.

Under this section, a hunting club was required to first bring a complaint for declaratory and prospective relief before the Arkansas Public Service Commission (PSC), and to exhaust all of its administrative remedies before the PSC prior to seeking judicial relief. Hempstead County Hunting Club v. Southwestern Elec. Power Co., 2011 Ark. 234, 385 S.W.3d 123 (2011).

Standing.

Where Attorney General, in complaint against phone company for unjust enrichment, did not allege that either he or the state had been unlawfully treated, he was not entitled to bring a claim pursuant to this section; even if he was entitled to represent affected ratepayers collectively, the section still requires a named complainant who has been unlawfully treated by the utility. Bryant v. Arkansas Pub. Serv. Comm'n, 53 Ark. App. 114, 919 S.W.2d 522 (1996).

Cited: Associated Mechanical Contractors v. Arkansas La. Gas Co., 225 Ark. 424, 283 S.W.2d 123 (1955); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Lincoln v. Ark. Pub. Serv. Comm'n, 313 Ark. 295, 854 S.W.2d 330 (1993); Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001).

23-3-120. Definition.

As used in this subchapter, unless the context requires otherwise, the terms “corporation” or “company” include a corporation and a limited liability company.

History. Acts 2001, No. 1291, § 12.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Property Law, 24 U. Ark. Little Rock L. Rev. 549.

Subchapter 2 — Certificates of Convenience and Necessity

Effective Dates. Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1957, No. 103, § 5: Feb. 27, 1957. Emergency clause provided: “It is hereby ascertained and determined by the General Assembly that certain areas near incorporated cities and towns are in urgent need of additional electric facilities and in order to encourage the immediate construction of the necessary electric facilities and for the immediate preservation of the public peace, health and safety this Act shall go into effect immediately upon its passage and approval.”

Acts 1967, No. 234, § 8: July 1, 1967.

Acts 2001, No. 324, § 2: effective October 1, 2003 by its own terms.

Acts 2001, No. 324, § 20: Feb. 20, 2001. Emergency clause provided: “It is hereby found and determined by the Eighty-third General Assembly that the timetable established by the Electric Consumer Choice Act of 1999 for its implementation does not offer enough time to properly implement the act; that this act modifies that timetable to provide for adequate time for the implementation; that some provisions of the Electric Consumer Choice Act of 1999 will go into effect prior to ninety-one (91) days after the adjournment of this session; that this act is designed to postpone those implementation dates; and that unless this emergency clause is adopted, this act will not go into effect until after provisions of the Electric Consumer Choice Act are already effective which would result in confusion, if not chaos. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 204, § 19: Feb. 21, 2003. Emergency clause provided: “It is found and determined by the Eighty-fourth General Assembly that certain provisions of the Electric Consumer Choice Act of 1999, as amended by Act 324 of 2001, for the implementation of retail electric competition may take effect prior to ninety-one (91) days after the adjournment of this session; that this act is intended to prevent such implementation; and that unless this emergency clause is adopted, this act may not go into effect until further steps have been taken toward retail electric competition, which the General Assembly has found not to be in the public interest. The General Assembly further finds that uncertainty surrounding the implementation of the Electric Consumer Choice Act during the ninety (90) days following the adjournment of this session and uncertainty regarding the recovery of reasonable generation costs, could discourage electric utilities from acquiring additional generation resources; that retail electric customers will require such resources; and that this act, in Section 11 and elsewhere, provides procedures to facilitate the acquisition of these resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2011, No. 910, § 13: Apr. 1, 2011. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that recent decisions by the Arkansas Court of Appeals and the Arkansas Supreme Court have pointed out the need for the General Assembly to clarify its intentions regarding the certification and authorization of the location, financing, construction, and operation of major utility facilities; and that this act is immediately necessary to provide for the continued economic development of the state and the orderly and efficient development of essential energy resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 842, § 2: Mar. 31, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the grant or denial of permission to operate as a public utility confers significant authority upon a public utility and is therefore an extremely important decision; that additional guidance should be provided to make this important determination and to protect citizens from potential abuses of the powers given to public utilities; and that this act is immediately necessary because a delay in implementing the standards required by this act will cause undue and long-lasting hardship to citizens affected by public utilities that were not required to meet the standards implemented by this act. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Public Law, 1 U. Ark. Little Rock L.J. 230.

23-3-201. Requirement for new construction or extension.

  1. New construction or operation of equipment or facilities for supplying a public service or the extension of a public service shall not be undertaken without first obtaining from the Arkansas Public Service Commission a certificate that public convenience and necessity require or will require the construction or operation.
    1. This section does not require a certificate of public convenience and necessity for:
      1. The replacement or expansion of existing equipment or facilities with similar equipment or facilities in substantially the same location or the rebuilding, upgrading, modernizing, or reconstructing of equipment or facilities that increase capacity if no increase in the width of an existing right-of-way is required;
      2. The construction or operation of equipment or facilities for supplying a public service that has begun under a limited or conditional certificate or authority as provided in §§ 23-3-203 — 23-3-205;
      3. The extension of a public service:
        1. Within a municipality or district where a public service has been lawfully supplied;
        2. Within or to territory then being served; or
        3. That is necessary in the ordinary course; or
      4. Except as provided in § 23-18-504(c), the construction or operation of a major utility facility as defined in the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq., or any exemption under the Utility Facility Environmental and Economic Protection Act, § 23-18-501 et seq.;
      1. This section does not require a certificate of public convenience and necessity for an electric utility that owns or has a legally recognized right-of-way, easement, or similar property right to property that is not being acquired by eminent domain and is traversed by the construction or connection of the following electric utility facilities:
        1. A new or existing transmission or distribution substation, transmission switching station, or transmission metering point and associated facilities or the extension to such facilities, provided that the public utility owns or has a legally recognized right-of-way, easement, or similar property right to the property that is traversed by the construction or connection of the facilities;
        2. If the electric public utility is not an electric cooperative:
          1. Any distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section;
          2. Transmission lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section of up to two (2) line miles in length with a voltage of greater than one hundred kilovolts (100 kV); or
          3. Transmission lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section of up to five (5) line miles in length with a voltage of less than or equal to one hundred kilovolts (100 kV); or
        3. If the electric public utility is an electric cooperative:
          1. Any distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section; or
          2. Any transmission lines up to five (5) line miles in length to or from the facilities identified in subdivision (b)(2)(A)(i) of this section if the electric cooperative has informed the landowners whose property is traversed according to the electric cooperative's business practices.
      2. Property that the public utility has previously acquired by eminent domain for the construction, operation, or connection of any other public utility facility is considered a legally recognized property right for the purposes of this subdivision (b)(2).
      3. This subdivision (b)(2) does not apply if the transmission or distribution lines to or from the facilities identified in subdivision (b)(2)(A)(i) of this section include a navigable waterway crossing subject to § 23-3-501 et seq.
  2. To the extent a member cooperative of a generation and transmission cooperative, as defined under § 23-4-1101, is exempt from the requirement to obtain a certificate of public convenience and necessity under subsection (b) of this section, the exemption shall extend to the generation and transmission cooperative.
  3. An exemption claimed by a public utility under § 23-18-504(a)(5) does not bar the:
    1. Public utility from seeking the issuance of a certificate of public convenience and necessity under this section; or
    2. Commission from granting the public utility the certificate of public convenience and necessity sought under subdivision (d)(1) of this section and thereby allowing the public utility to seek recovery of the reasonable cost of the equipment or facilities through rates.

History. Acts 1935, No. 324, § 41; Pope's Dig., § 2104; Acts 1957, No. 103, § 3; 1967, No. 234, § 5; A.S.A. 1947, § 73-240; Acts 1999, No. 1556, § 6; 2001, No. 324, § 1; 2003, No. 204, § 8; 2007, No. 468, § 1; 2009, No. 164, § 1; 2011, No. 910, § 12; 2013, No. 341, § 1; 2015, No. 736, § 2; 2015, No. 917, § 1; 2017, No. 273, § 1; 2017, No. 334, § 2; 2019, No. 765, § 1.

A.C.R.C. Notes. Acts 2003, No. 204, § 16, provided:

“Nothing in this act shall alter or diminish the Arkansas Public Service Commission's authority under otherwise applicable law.”

Publisher's Notes. Acts 2001, No. 324, § 1, repealed the amendment by Acts 1999, No. 1556, § 6, that was to become effective Jan. 1, 2002.

Acts 2001, No. 324, § 2, provided in part that its amendment of this section will be effective Oct. 1, 2003.

Amendments. The 2009 amendment rewrote the section.

The 2011 amendment added (b)(4).

The 2013 amendment added (b)(3)(D).

The 2015 amendment by No. 736 added (d).

The 2015 amendment by No. 917 deleted (b)(3)(D) and added (c).

The 2017 amendment by No. 273 added (b)(5).

The 2017 amendment by No. 334 redesignated (d) as (d)(1) and (2); added “or” at the end of the (d)(1); and, in (d)(2), substituted “Commission” for “nor shall such exemption bar the commission”, “the certificate” for “such certificate”, and inserted “sought under subdivision (d)(1) of this section”, and made stylistic changes.

The 2019 amendment redesignated (b)(1) through (b)(4) as (b)(1)(A) through (b)(1)(D); rewrote former (b)(5) and redesignated it as (b)(2)(A); and added (b)(2)(B) and (b)(2)(C).

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Utilities, 8 U. Ark. Little Rock L.J. 611.

Case Notes

Class C Water Utilities.

When the General Assembly deregulated Class C water utilities in 1987, it also nullified by implication any exclusive franchises which may have otherwise been in existence pursuant to a certificate of convenience and necessity. Sebastian Lake Pub. Util. Co. v. Sebastian Lake Realty, 325 Ark. 85, 923 S.W.2d 860 (1996).

Convenience and Necessity.

Order of the Department of Public Utilities (now Arkansas Public Service Commission) granting applicant a certificate of convenience and necessity to construct a natural gas pipe line to serve customers which were being served adequately by another company at a higher rate held supported by substantial evidence since element of cost, although not necessarily of itself sufficient, was a very important one for the department to consider in determining whether the public convenience and necessity will be served. Department of Pub. Utils. v. Arkansas La. Gas Co., 200 Ark. 983, 142 S.W.2d 213 (1940).

Commission's decision to grant a certificate of public convenience and necessity to construct a 69-kilovolt electric transmission line affirmed; notice to affected landowners held sufficient. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Effect of Repeal.

The repeal of Acts 1919, No. 571, § 13 requiring certificate of public convenience and necessity before constructing new utility did not violate the Constitution so as to alter a utility's franchise in a manner injurious to its corporators. City of Paragould v. Arkansas Utils. Co., 70 F.2d 530 (8th Cir.), cert. denied, 293 U.S. 586, 55 S. Ct. 101, 79 L. Ed. 682 (1934) (decision under prior law).

Legislative Intent.

The commission, in issuing or denying certificates of public convenience, acts legislatively and effectuates the legislative intent through the promulgation of rules and regulations. Harness v. Arkansas Pub. Serv. Comm'n, 60 Ark. App. 265, 962 S.W.2d 374 (1998).

Municipal Corporations.

A city is authorized to construct a light plant without obtaining a certificate of necessity and convenience as provided by this section. Kitchens v. City of Paragould, 191 Ark. 940, 88 S.W.2d 843 (1935).

Cited: Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968).

23-3-202. Requirement for operation under suspended permit.

A public utility shall not exercise any right or privilege under any franchise or permit, the exercise of which has been suspended or discontinued for more than one (1) year, without first obtaining from the Arkansas Public Service Commission or the Arkansas Department of Transportation a certificate that public convenience and necessity require the exercise of such a right or privilege.

History. Acts 1935, No. 324, § 42; Pope's Dig., § 2105; A.S.A. 1947, § 73-241; Acts 2017, No. 707, § 108.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “A public utility shall not” for “No public utility shall”, and substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-3-203. Application for certificate.

  1. Every applicant for a certificate shall give notice of its application as the commission may require and shall file in the office of the commission evidence as shall be required by the commission to show that the applicant has received the consent, franchise, permit, ordinance, vote, or other authority of the proper municipality or other public authority if required.
  2. Before any certificate may issue under § 23-3-205, if the applicant therefor is a corporation, a certified copy of the articles of incorporation or charter shall be on file in the office of the commission.

History. Acts 1935, No. 324, § 43; Pope's Dig., § 2106; A.S.A. 1947, § 73-242.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Case Notes

Content.

Where water company's initial application described the area to be served and asked that it be allocated to the company and asked that a certificate of convenience and necessity to furnish water service to customers in that area be granted and where the commission's order, even though it did not recite that applicant was granted an exclusive right to supply water to the residents in the allocated area, provided that there was no adequate supply of water in the area and that it was in the public interest to grant the application, trial court's finding that the water company had a certificate of convenience and necessity giving it the exclusive right to sell water in its allocated territory was supported by a great preponderance of the evidence. City of Van Buren v. 64-71 Highway Water Co., 270 Ark. 466, 605 S.W.2d 419 (1980).

23-3-204. Preliminary orders.

  1. If the applicant desires to exercise the right or privilege under a franchise, permit, ordinance, vote, or other authority which it contemplates securing or which has not then been granted to it, the applicant may apply to the commission for an order preliminary to the issuance of the certificate.
  2. The commission may thereupon make an order declaring that it will thereafter, upon application under such rules as it may prescribe, issue the desired certificate upon the terms and conditions as it may designate after the applicant has obtained the contemplated franchise, permit, ordinance, vote, or other authority.
  3. Upon the presentation to the commission of evidence satisfactory to it, if such a franchise, permit, ordinance, vote, or other authority has been secured by the applicant, the commission shall thereupon issue the certificate.

History. Acts 1935, No. 324, § 43; Pope's Dig., § 2106; A.S.A. 1947, § 73-242; Acts 2019, No. 315, § 2380.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2019 amendment deleted “and regulations” following “rules” in (b).

Case Notes

Rules and Regulations.

In effectuating the legislative intent through promulgation of rules and regulations within the scope of the authority conferred, the Department of Public Utilities acts as a law-making body, and in enforcing such rules and regulations it acts in an administrative capacity. Department of Pub. Utils. v. McConnell, 198 Ark. 502, 130 S.W.2d 9 (1939).

23-3-205. Issuance of certificate of public convenience and necessity — Terms and conditions — Definitions.

  1. As used in this section:
    1. “Consolidated utility district” means a consolidated utility district as defined in § 14-217-103 that owns or operates an electric system as defined in § 14-217-103; and
    2. “Municipality” means a municipality as defined in § 14-202-102 that:
      1. Owns or operates a municipal electric utility as defined in § 25-20-402; or
      2. Is an owner of an electric project as defined in § 25-20-402.
    1. After conducting a hearing to assess the merits of an application for a certificate of public convenience and necessity under this subchapter, the Arkansas Public Service Commission may grant or deny all or part of the application upon any terms or conditions the commission finds appropriate to serve the purposes of this subchapter.
    2. The right to a hearing under this section may be waived by the applicant.
    1. Except as provided under subdivision (c)(2) of this section, the commission shall not issue a certificate of public convenience and necessity to any person or corporation that:
      1. Is not a public utility;
      2. Primarily transmits electricity; and
      3. Has not been directed or designated to construct an electric transmission facility from a regional transmission organization.
    2. After the commission conducts a hearing under subdivision (b)(1) of this section for a person or corporation that primarily transmits electricity and has not been directed to construct an electric transmission facility from a regional transmission organization, the commission may grant or deny all or part of the application upon any terms or conditions the commission finds appropriate for the purposes of this subchapter subject to the following considerations:
      1. The commission shall only authorize the person or corporation to contract with a municipality or a consolidated utility district that is not located within the service territory of another public utility;
      2. The commission shall not authorize the person or corporation to serve any customers outside of the boundaries of a municipality or consolidated utility district;
      3. The commission shall not authorize the person or corporation to serve any customers that are otherwise served by, or located within, the service territory of another public utility; and
      4. The commission shall not grant a certificate of public convenience and necessity under this subchapter to a person or corporation if doing so would result in an unreasonable impact on any other public utility or on the customers of any other electric utility in this state that is inconsistent with the public interest as determined by the commission.

History. Acts 1935, No. 324, § 43; Pope's Dig., § 2106; A.S.A. 1947, § 73-242; Acts 1991, No. 812, § 1; 2015, No. 842, § 1; 2019, No. 543, § 1.

Amendments. The 2015 amendment inserted “of public convenience and necessity” in the section heading; and rewrote the section.

The 2019 amendment redesignated former (a)(1) and (a)(2) as (b)(1) and (b)(2) respectively; added (a); substituted “subchapter” for “subtitle” in (b)(1); substituted “Except as provided under subdivision (c)(2) of this section, the commission” for “The commission” in (c)(1); rewrote (b) as (c)(1); and added (c)(2).

Case Notes

Convenience and Necessity.

Finding that the water company had a certificate of convenience and necessity giving it the exclusive right to sell water in its allocated territory was supported by a great preponderance of the evidence. City of Van Buren v. 64-71 Highway Water Co., 270 Ark. 466, 605 S.W.2d 419 (1980).

Terms and Conditions on Issuance.

Power of Department of Public Utilities to attach terms and conditions to rights granted by certificate of convenience and necessity relates to methods of construction and quality and extent of service rather than controversies between contending utility companies in respect of matters involving damages to their properties. Department of Pub. Utils. v. McConnell, 198 Ark. 502, 130 S.W.2d 9 (1939).

Department of Public Utilities should issue certificates of convenience and necessity to rural electric cooperative corporations unconditionally and not conditioned so as to require them to make compensation to telephone companies for damages to telephone service due to inductive interference caused by the operation of electric power lines. Department of Pub. Utils. v. McConnell, 198 Ark. 502, 130 S.W.2d 9 (1939).

23-3-206. Unauthorized construction or operation.

  1. Whenever any new construction or operation is undertaken or about to be begun without having secured a certificate of public convenience and necessity as required by the provisions of this act, any interested person may file a complaint with the commission.
  2. The commission, with or without notice, may make its order requiring the party complained of to cease and desist from the construction or operation until the commission makes and files its decision on the complaint, or until the further order of the commission.
  3. The commission, after hearing and after reasonable notice, may make the order and prescribe such terms and conditions in harmony with this act as are just and reasonable.

History. Acts 1935, No. 324, § 43; Pope's Dig., § 2106; A.S.A. 1947, § 73-242.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-410 — 23-2- 412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Subchapter 3 — Merger or Acquisition of Control of Domestic Public Utilities

Effective Dates. Acts 1985, No. 343, § 16: Mar. 13, 1985. Emergency clause provided: “It is hereby found and determined that there is a substantial possibility that domestic public utilities might be merged or acquired by such persons or in such ways that would be detrimental to the continued provision of safe, reliable, and justly priced utility service by such domestic public utility, and therefore detrimental to the public health, welfare, and safety of the citizens of Arkansas. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety, shall be in full force and effect from and after its passage and approval.”

23-3-301. Legislative determination.

  1. The methods and manner in which utility services are provided by domestic public utilities to the citizens, businesses, institutions, and other utility customers in Arkansas are directly related to the continued health, safety, and welfare of the citizens of Arkansas. Homes, schools, churches, places of business, and other facilities necessarily used and occupied by the citizens of Arkansas depend upon and must receive safe, reliable, and justly priced utility services.
  2. The merger or acquisition or attempted acquisition of control of a domestic public utility may, if not regulated by the State of Arkansas:
    1. Diminish the ability or determination of the domestic public utility to meet its contractual obligations or render the same level of service that the domestic public utility is currently rendering;
    2. Substantially lessen competition in the furnishing of utility service;
    3. Jeopardize the financial stability of the domestic public utility;
    4. Be detrimental to the customers of the domestic public utility and not be in the public interest; or
    5. Lead to the control or operation of the domestic public utility by persons of such competence, experience, or integrity that would not be in the interest of the domestic public utility's customers or the public.

History. Acts 1985, No. 343, § 13; A.S.A. 1947, § 73-142.

23-3-302. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Acquiring party” means a person and all affiliates of that person by whom or on whose behalf a merger or other acquisition of control referred to in § 23-3-306 is to be affected;
  2. “Affiliate” means a person who directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified, including any corporation created at the direction of the person specified for purposes of corporate reorganization;
  3. “Commission” means the Arkansas Public Service Commission;
    1. “Control”, including the terms “controlling”, “controlled by”, and “under common control with”, means the direct or indirect possession of the power to direct or cause direction of the management and policies of a domestic public utility, whether through the ownership of voting securities, by contract, or otherwise, unless that power is the result of an official position with, or corporate office held in, that person.
    2. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing ten percent (10%) or more of the aggregate number of the issued and outstanding voting securities of any domestic public utility. This presumption may be rebutted by a showing that control does not exist in fact.
    3. The commission may determine, after furnishing all persons in interest notice and opportunity to be heard and making specific findings of fact to support its determination, that control exists in fact notwithstanding the absence of a presumption to that effect;
  4. “Domestic public utility” means a person doing business in the state, whose business of providing utility service in this state is regulated by the commission, or by a political subdivision of a state, excluding any person providing telephone utility service, as described by subdivision (9)(C) of this section, of which title to all voting securities issued and outstanding is held by a total of three hundred (300) persons or less;
  5. “Issuer” means any person who issues or proposes to issue any security;
  6. “Person” means an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization, any similar entity, or any combination of the foregoing acting in concert;
    1. “Tender offer” means the acquisition of, or offer to acquire, pursuant to a tender offer or request or invitation for tenders, any issued and outstanding voting security of a domestic public utility if after acquisition the acquiring party would, directly or indirectly, be a record or beneficial owner of more than ten percent (10%) of the aggregate number of the issued and outstanding voting securities of the domestic public utility.
    2. “Tender offer” does not mean:
      1. Bids made by a dealer for his or her own account in the ordinary course of his or her business of buying and selling voting securities; or
      2. Any other offer from not more than fifty (50) persons to acquire a voting security, or the acquisition of a voting security pursuant to such an offer, for the sole account of the acquiring party, which is made in good faith and not for the purpose of avoiding the provisions of this subchapter;
  7. “Utility service” means:
    1. The furnishing and sale of gas to the public for domestic or general service by gas pipelines, distribution companies, or other companies operating within the state;
    2. The production, generation, transmission, distribution, delivery, or furnishing of electricity for the production of light, heat, or power to or for the public for compensation; and
    3. The conveyance or transmission of messages or communications by telephone where that service is offered to the public for compensation; and
  8. “Voting security” means any issued and outstanding stock or indenture of any class presently entitling the owner or holder to vote with respect to the direction or management of the affairs of a company, or any stock or indenture of any class issued under or pursuant to any trust, agreement, or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of the stock or indenture are entitled to vote with respect to the direction or management of the company.

History. Acts 1985, No. 343, § 1; A.S.A. 1947, § 73-142.1; Acts 1987, No. 954, § 1.

23-3-303. Applicability.

  1. If a domestic public utility seeks to acquire control of another domestic public utility which is subject to the Arkansas Public Service Commission's jurisdiction in a transaction described in § 23-3-306 for which the filing of a statement would be required, then an application for approval containing any information which the commission may prescribe by rule adopted pursuant to this subchapter shall be filed with and heard by the commission after such notice as the commission may prescribe, and the transaction shall be approved or disapproved based upon the factors enumerated in § 23-3-310, subject to judicial review as provided in § 23-3-313, but the other provisions of this subchapter shall not apply to the transaction.
  2. Provisions of this subchapter shall not apply when voting securities are issued, exchanged, or sold by a domestic public utility upon terms and conditions approved by its board of directors.

History. Acts 1985, No. 343, § 7; A.S.A. 1947, § 73-142.7; Acts 2019, No. 315, § 2381.

Amendments. The 2019 amendment deleted “or regulation” following “rule” in (a).

23-3-304. Penalties.

  1. Any person who knowingly does or causes to be done any act, matter, or thing prohibited or declared to be unlawful by this subchapter, or who knowingly omits or fails to do any act, matter, or thing required by this subchapter, or knowingly causes such an omission or failure, shall be punished upon conviction thereof by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not more than two (2) years, or both. In addition, the violation shall be punishable upon conviction by a fine not exceeding five hundred dollars ($500) for each day during which the offense occurs.
  2. Any person who knowingly violates any rule, restriction, condition, or order made or imposed by the Arkansas Public Service Commission under authority of this subchapter shall be guilty of a violation and, in addition to any other penalties provided by law, shall be punished upon conviction by a fine not exceeding five hundred dollars ($500) for each day during which such an offense occurs.
  3. In addition, should any person consummate, by whatever means, the acquisition of any of the voting securities of a domestic public utility in violation of this subchapter, the commission upon finding that one (1) or more of the conditions set forth in § 23-3-310 exist or will exist by virtue of the acquisition, may order the immediate divestiture of so much of the voting securities held by that person as, in the commission's opinion, is necessary to remove the domestic public utility from the control of that person.

History. Acts 1985, No. 343, § 11; A.S.A. 1947, § 73-142.11; Acts 2005, No. 1994, § 454; 2019, No. 315, § 2382.

Amendments. The 2005 amendment deleted “willfully and” preceding “knowingly” throughout (a) and (b); and inserted “be guilty of a violation and” in (b).

The 2019 amendment deleted “regulation” following “rule” in (b).

23-3-305. Powers of commission.

The Arkansas Public Service Commission shall have power to perform any and all acts, and to prescribe, issue, make, amend, and rescind any orders or rules which it may find necessary or appropriate to carry out the provisions of this subchapter.

History. Acts 1985, No. 343, § 9; A.S.A. 1947, § 73-142.9; Acts 2019, No. 315, § 2383.

Amendments. The 2019 amendment substituted “orders or rules” for “orders, rules, and regulations”.

23-3-306. Procedure generally.

  1. Any person who acquires five percent (5%) or more of the aggregate number of the issued and outstanding voting securities of a domestic public utility, within two (2) business days thereafter, shall deliver written notice of the acquisition to the Arkansas Public Service Commission. The following information shall be included in the notice:
    1. The name and address of each person and all affiliates of that person;
    2. The number and class of all shares held by each person and all affiliates of that person; and
    3. Whether the person or any affiliate of that person, individually or collectively, intends to acquire ten percent (10%) or more of the aggregate number of the issued and outstanding voting securities of the domestic public utility.
  2. No person other than the issuer of the securities of the domestic public utility or an affiliate of the issuer shall make a tender offer for, request, or invite tenders of, or enter into any agreement to exchange, seek to acquire, or acquire, in the open market or otherwise, any issued and outstanding voting securities of a domestic public utility regulated by the commission if, after the consummation of that action, the person would, directly or indirectly or by conversion or by exercise of any right to acquire, be in control of the domestic public utility. No person shall merge with or otherwise acquire control of a domestic public utility unless the acquiring party is an affiliate of the domestic public utility or unless, at the time the offer, request, or invitation is made, or prior to the acquisition of the securities if no offer or agreement is involved, the person has filed with the commission and has sent to the domestic public utility a statement containing the information required by § 23-3-307 and the offer, request, invitation, or acquisition has been approved by the commission in the manner prescribed in §§ 23-3-310 and 23-3-311.
  3. The commission may modify the aforementioned procedures to the extent necessary to conform to the requirement of Regulation 14D under the Securities Exchange Act of 1934, as amended.

History. Acts 1985, No. 343, § 2; A.S.A. 1947, § 73-142.2.

U.S. Code. The Securities Exchange Act of 1934, referred to in this section, is codified as 15 U.S.C. § 78a et seq.

23-3-307. Statement filed with commission — Contents — Amendments.

  1. The statement to be filed with the Arkansas Public Service Commission as required by § 23-3-306 shall be made under oath or affirmation and shall contain the following information:
    1. The name and address of each acquiring party and all affiliates thereof, and:
      1. If the acquiring party is an individual, his or her principal occupation and all offices and positions held during the past five (5) years, and any conviction of crimes other than minor traffic violations during the past ten (10) years; or
      2. If the acquiring party is not an individual, a report of the nature of its business and its affiliates' operations during the past five (5) years or for such lesser period as the acquiring party and any predecessors thereof shall have been in existence, an informative description of the business intended to be done by the acquiring party and its subsidiaries, and a list of all individuals who are or who have been selected to become directors or officers of the acquiring party or who perform or will perform functions appropriate or similar to those positions. The list shall include for each individual the information required by subdivision (a)(1)(A) of this section;
    2. The source, nature, and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a detailed description of any transaction wherein funds were or are to be obtained for that purpose, and the identity of persons furnishing the consideration. However, where a source of the consideration is a loan made in the lender's ordinary course of business, the identity of the lender shall remain confidential if the person filing the statement so requests;
    3. Audited financial information in a form acceptable to the commission as to the financial condition of each acquiring party for the preceding three (3) fiscal years, or for such lesser period as the acquiring party and any predecessors thereof shall have been in existence, and similar information as of a date not earlier than one hundred thirty-five (135) days prior to the filing of the statement;
      1. Any plans or proposals which an acquiring party may have to liquidate the public utility, to sell its assets, or a substantial part thereof, to merge or consolidate it with any person, or to make any other material change in its investment policy, business or corporate structure, or management.
      2. If any change is contemplated in the investment policy, business, or corporate structure, the contemplated changes and the rationale for them shall be explained in detail.
      3. If any changes in the management of the domestic public utility or person controlling the domestic public utility are contemplated, the acquiring party shall provide a resume of the qualifications and the names and addresses of the individuals who have been selected or are being considered to replace the then-current management personnel of the domestic public utility or the person controlling the domestic public utility;
    4. The number of shares of any voting securities which each acquiring party proposes to acquire, and the terms of the offer, request, invitation, agreement, or acquisition referred to in § 23-3-306;
    5. The amount of each class of any voting security which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party;
    6. A full description of any contracts, arrangements, or understandings with respect to any voting securities in which any acquiring party is involved including, but not limited to, transfer of any securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies. The description shall identify the persons with whom the contracts, arrangements, or understandings have been entered into;
    7. A description of the purchase of any voting securities during the twelve (12) calendar months preceding the filing of the statement by any acquiring party, including the dates of purchase, names of the purchasers, and consideration paid or agreed to be paid for the voting securities;
    8. Copies of all tender offers for, requests for, advertisements for, invitations for tenders of, exchange offers for, and agreements to acquire or exchange any voting securities and, if distributed, of additional soliciting material relating thereto; and
    9. Any additional information which the commission may by rule prescribe as necessary or appropriate for the protection of ratepayers of the domestic public utility or in the public interest.
    1. If a person required to file the statement referred to in § 23-3-306 is a partnership, limited partnership, syndicate, or other group, the commission may require that the information called for in subdivisions (a)(1)-(10) of this section shall be given with respect to each partner of the partnership or limited partnership, each member of the syndicate or group, and each person who controls a partner or member.
    2. If any partner, member, person, or acquiring party is a corporation, or if a person required to file the statement referred to in § 23-3-306 is a corporation, the commission may require that the information called for by subdivisions (a)(1)-(10) of this section be given with respect to the corporation, each officer and director of the corporation, and each person who is directly or indirectly the beneficial owner of more than ten percent (10%) of the outstanding voting securities of the corporation and each affiliate of such a corporation.
  2. If any material change occurs in the facts set forth in the statement filed with the commission and sent to the domestic public utility pursuant to this subchapter, an amendment setting forth the change, together with copies of all documents and other material relevant to the change, shall be filed with the commission and sent by the person filing the statement to the domestic public utility within two (2) business days after the person learns of the change.

History. Acts 1985, No. 343, § 3; A.S.A. 1947, § 73-142.3; Acts 2019, No. 315, § 2384.

Amendments. The 2019 amendment deleted “or regulation” following “rule” in (a)(10).

23-3-308. Statement filed with commission — Attachments and incorporation by reference.

If any offer, request, invitation, merger, or acquisition referred to in § 23-3-306 is proposed to be made by means of a registration statement under the Securities Act of 1933, as amended, including rules and regulations promulgated thereunder, or in circumstances requiring disclosure of similar information under the Securities Exchange Act of 1934, as amended, including rules and regulations promulgated thereunder, or under a state law including rules and regulations promulgated thereunder, requiring similar registration or disclosure, the person required to file the statement referred to in § 23-3-306 may incorporate information contained in the documents filed under the above-mentioned statutes into the statement by attaching the other documents to the statement filed under this subchapter and making specific reference to the information provided by the attached documents.

History. Acts 1985, No. 343, § 4; A.S.A. 1947, § 73-142.4.

U.S. Code. The Securities Act of 1933 and the Securities Exchange Act of 1934, referred to in this section, are codified as 15 U.S.C. § 77a et seq. and 15 U.S.C. § 78a et seq., respectively.

23-3-309. Payment of expenses of investigation.

The expense of conducting an analysis or investigation by the Arkansas Public Service Commission of the information required to be filed under § 23-3-307 shall be paid by the acquiring party within fifteen (15) days of the public hearing required by §§ 23-3-310 and 23-3-311. Expenses of conducting the analysis or investigation may include, but not be limited to, the cost of acquiring expert witnesses, consultants, and analytical services.

History. Acts 1985, No. 343, § 9; A.S.A. 1947, § 73-142.9.

23-3-310. Grounds for disapproval.

The Arkansas Public Service Commission shall approve any merger or other acquisition of control referred to in § 23-3-306 unless, after a public hearing thereon, it finds that one (1) or more of the following conditions will exist if the merger or other acquisition of control is consummated, in which event it shall disapprove the merger or acquisition of control and the merger or acquisition of control shall not be consummated:

  1. The acquisition of control would adversely affect the contractual obligations of the domestic public utility or of any person controlling the domestic public utility or the ability or commitment to continue to render the same level of service to its customers that the domestic public utility is currently rendering;
  2. The effect of the merger or other acquisition of control would be substantially to lessen competition in the furnishing of public utility service in this state;
  3. The financial condition of any acquiring party is such as might jeopardize the financial stability of the domestic public utility or any person controlling the domestic public utility or would otherwise prejudice the interest of the domestic public utility's customers;
  4. The plans or proposals which an acquiring party has to liquidate the public utility or any such controlling person, to sell its assets or a substantial part thereof, or to consolidate or merge it with any person, or to make any other material change in its investment policy, business or corporate structure, or management would be detrimental to the customers of the domestic public utility and not in the public interest; or
  5. The competence, experience, and integrity of those persons who would control the operation of the domestic public utility are such that it would not be in the interest of its customers and the public to permit the merger or other acquisition of control.

History. Acts 1985, No. 343, § 5; A.S.A. 1947, § 73-142.5.

23-3-311. Hearing — Notice — Determination.

  1. The public hearing referred to in § 23-3-310 shall be commenced within thirty (30) days after the statement required by § 23-3-306 is filed.
    1. The place, date, and time for the public hearing shall be set by the Arkansas Public Service Commission, and notice of the hearing shall be given by the commission to the person filing the statement and to the domestic public utility at least twenty (20) days prior to the date of the public hearing.
    2. Notice of the public hearing shall be given by the person filing the statement to such other persons and in such manner as may be directed by the commission at least fifteen (15) days prior to the public hearing.
      1. Notice of the hearing, in a form to be specified by the commission, shall be mailed, or shall be given in such other manner as may be determined by the commission, by the domestic public utility to its customers within ten (10) business days after it has received notice of the hearing from the commission.
      2. The expenses of preparation and mailing and giving of notice shall be borne by the person filing the statement required by § 23-3-306. As security for the payment of expenses, the commission may require the person to file with the commission an acceptable bond or other deposit in an amount to be determined by the commission.
  2. The public hearing shall be concluded within thirty (30) days after the commencement of the hearing.
  3. The commission shall make a determination of the factors specified in § 23-3-310 within thirty (30) days after the conclusion of the hearing, and any merger or other acquisition of control within the purview of this subchapter shall be deemed approved unless the commission has, within thirty (30) days after the conclusion of the hearing, entered its order disapproving the merger or other acquisition of control.

History. Acts 1985, No. 343, §§ 5, 6; A.S.A. 1947, §§ 73-142.5, 73-142.6.

23-3-312. Rehearing.

Any party to a proceeding before the Arkansas Public Service Commission aggrieved by an order issued by the commission pursuant to this subchapter may apply for a rehearing pursuant to the provisions of § 23-2-422.

History. Acts 1985, No. 343, § 12; A.S.A. 1947, § 73-142.12; Acts 1991, No. 810, § 1.

23-3-313. Judicial review.

Any party to a proceeding before the Arkansas Public Service Commission aggrieved by an order issued by the commission in the proceeding may obtain a review of the order in the Court of Appeals pursuant to the provisions of § 23-2-423.

History. Acts 1985, No. 343, § 12; A.S.A. 1947, § 73-142.12; Acts 1991, No. 810, § 2.

23-3-314. Stay of order pending review.

  1. The filing of an application for rehearing under § 23-3-312 shall not, unless specifically ordered by the Arkansas Public Service Commission, operate as a stay of the commission's order.
  2. The commencement of proceedings under § 23-3-313 shall not, unless specifically ordered by the Court of Appeals, operate as a stay of the commission's order.
  3. The Court of Appeals may enter an order suspending or staying the operation of an order of the commission pending review of the order provided the other parties are adequately secured against loss due to the delay in the enforcement of the order, in case the order involved is affirmed. The security shall take such form as shall be directed by the court.

History. Acts 1985, No. 343, § 12; A.S.A. 1947, § 73-142.12; Acts 1991, No. 810, § 3.

23-3-315. Jurisdiction over nonresidents — Service of process.

  1. The courts of this state are vested with jurisdiction over every person not resident, domiciled, or authorized to do business in this state who files or is required to file a notice or statement with the Arkansas Public Service Commission as required by § 23-3-306 and over all actions involving such persons, and over all other persons acting on behalf or at the discretion of that person, including, without limitation, national or regional stock exchanges or securities brokers, their agents, servants, employees, representatives, account executives, and similar persons, with respect to actions arising out of violations of this subchapter.
  2. The commission shall be the agent for service of process for any such person, or other persons acting on behalf of that person, in any action, suit, or proceeding arising out of violations of this subchapter. Copies of all lawful process shall be served on the commission and transmitted by certified or registered mail, with return receipt requested, by the commission to any person subject to jurisdiction hereunder at his or her last known address.

History. Acts 1985, No. 343, § 8; A.S.A. 1947, § 73-142.8.

23-3-316. Injunctions — Criminal proceedings.

  1. Whenever it shall appear to the Arkansas Public Service Commission, the Attorney General, or a domestic public utility which reasonably believes itself to be the object of a tender offer or attempt to obtain control as described in § 23-3-306, that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter, or of any rule or order thereunder, the commission, the Attorney General, or the domestic public utility may bring an action in Pulaski County Circuit Court to enjoin those acts or practices and to enforce compliance with this subchapter or any rule or order thereunder. Upon a proper showing being made, a temporary restraining order, preliminary injunction, or permanent injunction enjoining any such person and all others acting on behalf of or at the discretion of that person shall be granted without bond.
  2. The commission, the Attorney General, and the domestic public utility shall transmit any evidence which may be available concerning those acts or practices or concerning apparent violations of this subchapter to the prosecuting attorney for Pulaski County who, in his or her discretion, may institute appropriate criminal proceedings.

History. Acts 1985, No. 343, § 10; A.S.A. 1947, § 73-142.10; Acts 2019, No. 315, § 2385.

Amendments. The 2019 amendment deleted “regulation” following “rule” twice in the first sentence of (a).

Subchapter 4 — Energy Conservation Endorsement Act of 1977

Cross References. Energy Conservation and Renewable Energy Resource Finance Act, § 14-167-201 et seq.

Energy Reorganization and Policy Act, § 15-10-201 et seq.

Effective Dates. Acts 2013, No. 253, § 2: July 1, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the costs of operations for large industrial and manufacturing businesses continue to rise; that the Arkansas unemployment rate continues to be high; that the state of the economy has dramatically affected Arkansas businesses, resulting in layoffs of numerous Arkansans; that reducing the costs of natural gas and electricity used by Arkansas businesses would provide these businesses with additional revenues to support an increase in their number of employees, which would increase productivity and provide lucrative employment for Arkansans; and that this act is necessary to aid the continual recovery of the Arkansas economy. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2013.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019”.

23-3-401. Title.

This subchapter shall be known and may be cited as the “Energy Conservation Endorsement Act of 1977”.

History. Acts 1977, No. 748, § 1; A.S.A. 1947, § 73-2501.

23-3-402. Legislative findings.

The General Assembly finds that the United States is confronted with a severe and very real energy crisis. Simply stated, the demand for fuels has outstripped the available supplies. The President of the United States has established energy conservation as a high-priority national goal and has called on all Americans to participate in and perhaps make sacrifices toward attaining that goal. The General Assembly recognizes that enormous amounts of energy are wasted by consumers of all classes and economic levels due to inadequate insulation of buildings and other inefficiencies in the use of energy. The overriding public interest in the conservation of natural gas and oil, as well as the use of alternative forms of energy, is indisputable.

History. Acts 1977, No. 748, § 2; A.S.A. 1947, § 73-2502.

23-3-403. Energy conservation programs and measures defined.

As used in this subchapter, unless the context otherwise requires, “energy conservation programs and measures” may include, but shall not be limited to:

  1. Programs of residential, commercial, or industrial insulation, including measures to facilitate the financing of such insulation;
  2. Programs which result in the improvement of load factors, contribute to reductions in peak power demands, and promote efficient load management, including the adoption of interruptible service equipment and alternative or additional metering equipment designed to implement new rate structures; and
  3. Programs which encourage the use of renewable energy technologies or sources, including solar energy, wind power, geothermal energy, biomass conversion, or the energy available from municipal, industrial, silvicultural, or agricultural wastes.

History. Acts 1977, No. 748, § 4; A.S.A. 1947, § 73-2504.

23-3-404. Conservation a proper utility function.

It shall be considered a proper and essential function of public utilities regulated by the Arkansas Public Service Commission to engage in energy conservation programs, projects, and practices which conserve, as well as distribute, electrical energy and supplies of natural gas, oil, and other fuels.

History. Acts 1977, No. 748, § 3; A.S.A. 1947, § 73-2503.

23-3-405. Authority of commission — Rates and charges — Exemptions.

      1. Except as otherwise stated in this section, the Arkansas Public Service Commission is authorized to propose, develop, solicit, approve, require, implement, and monitor measures by utility companies which cause the companies to incur costs of service and investments which conserve, as well as distribute, electrical energy and existing supplies of natural gas, oil, and other fuels.
      2. The commission is authorized to order, require, promote, or engage in energy conservation programs and measures for the benefit of utility customers who are sixty-five (65) years of age or older or who meet the income eligibility qualifications for the Low Income Home Energy Assistance Program administered by the Arkansas Energy Office of the Division of Environmental Quality.
    1. After proper notice and hearings, the energy conservation programs and measures may be approved and ordered into effect by the commission if the commission determines that the energy conservation programs and measures will be beneficial to the ratepayers of the public utilities and to the public utilities themselves.
      1. In such instances, the commission shall declare that the cost of the energy conservation programs and measures is a proper cost of providing utility service.
      2. At the time the energy conservation programs and measures are approved and ordered into effect, the commission shall also order that the affected public utility company be allowed to increase its rates or charges as necessary to recover from consumers who have not opted out of utility-sponsored energy conservation programs and measures under subdivision (c)(1) of this section any costs incurred by the public utility company as a result of its engaging in the energy conservation programs and measures.
  1. Nothing in this subchapter shall be construed as limiting or cutting down the authority of the commission to order, require, promote, or engage in other energy conservation programs and measures.
      1. A nonresidential business consumer that is classified within sectors 31 through 33 of the North American Industry Classification System, as it existed on January 1, 2013, or a nonresidential business consumer that is a state-supported institution of higher education may provide notice by mail or email to the commission on or before September 15 of any year of the nonresidential business consumer's decision to opt out of utility-sponsored energy conservation programs and measures and direct the nonresidential business consumer's own energy conservation programs and measures if the nonresidential business consumer:
        1. Satisfies one (1) of the following criteria:
          1. Has a peak electrical demand of at least one megawatt (1 MW) or an annual natural gas usage of seventy thousand million British thermal units (70,000 MMBtu) at a single facility; or
          2. Has multiple facilities with identical ownership in a single public utility's service territory with:
            1. A peak electrical demand that exceeds two hundred kilowatts (200 kW) at each location and an aggregated peak electrical demand of at least one megawatt (1 MW) for all of the locations; or
            2. An annual natural gas usage that exceeds fourteen thousand million British thermal units (14,000 MMBtu) at each location and an aggregated annual natural gas usage of seventy thousand million British thermal units (70,000 MMBtu) for all of the locations; and
        2. In the five (5) years preceding the notice:
          1. Has not accepted:
            1. The installation of any energy conservation programs and measures by the applicable public utility; or
            2. Financing or direct monetary compensation in the form of a rebate or incentive to enable the installation of any energy conservation programs and measures by the applicable public utility; or
          2. Has accepted but returned to an applicable public utility through a separate payment to the public utility or through payment of rates approved under subdivision (a)(3) of this section any amount received from an applicable public utility calculated from the date of the installation of the last energy conservation program or measure, including any interest and directly attributable rate effects, for:
            1. The installation of any energy conservation programs and measures by the applicable public utility; or
            2. Financing or direct monetary compensation in the form of a rebate or incentive to enable the installation of any energy conservation programs and measures by the applicable public utility.
              1. That:
              2. That:
              3. The nonresidential customer is not eligible to participate in any energy conservation programs and measures offered by the public utility company under this section.
      2. After proper notice and hearings, the commission may decrease the peak demand requirements under subdivision (c)(1)(A) of this section, but the commission shall not increase the peak demand requirements under subdivision (c)(1)(A) of this section.
    1. The notice of exemption required under subdivision (c)(1) of this section shall include a sworn affidavit from an authorized employee of the nonresidential business consumer that states either:
      1. The nonresidential business consumer meets the criteria stated in subdivision (c)(1)(A) of this section;
      2. The nonresidential business consumer has implemented or will implement energy conservation programs and measures or has made or will make an investment designated to provide energy savings for the nonresidential business consumer; and
      3. The energy conservation programs and measures implemented or to be implemented or the investment made or to be made has provided or is expected to provide energy savings for the nonresidential business consumer in an amount that is at least equal to the energy efficiency goals or standards established by the commission at the time the notice is issued under this subsection; or
    1. Upon receipt of a notice of exemption that meets the requirements of subsection (c) of this section, the commission shall issue an order of compliance stating that the nonresidential business consumer has met the requirements of this section and that the rights and limitations of subdivision (d)(2) of this section apply.
    2. Beginning January 1 next following the commission's order of compliance under subdivision (d)(1) of this section:
      1. The nonresidential customer is not required to participate in any utility-sponsored energy conservation programs and measures required by the commission under this section for the applicable public utility;
      2. The public utility company shall not bill a nonresidential business consumer who has been granted an exemption under this subsection for the rates and charges approved by the commission under subdivision (a)(3) of this section; and
    3. An exemption and order of compliance issued under this subsection is permanent until it is withdrawn by the nonresidential business consumer under this section.
    1. A nonresidential business consumer seeking to withdraw an exemption granted under this section shall notify the commission by September 15 of any year.
    2. Upon notification of the withdrawal of an exemption under this subsection, the commission shall notify the public utility company of the withdrawal of the exemption.
    3. Beginning with the January billing cycle in the year next following notice of the withdrawal of an exemption under this subsection:
      1. The public utility company shall begin billing the nonresidential business consumer for the rates and charges that apply at the time the exemption is withdrawn; and
      2. The nonresidential business consumer shall be eligible to participate in any energy conservation programs and measures offered by the public utility company under this section.
  2. The commission shall revise its rules and promulgate new rules only to the extent required to allow the commission to incorporate and comply with subsections (c)-(e) of this section.

(i) The nonresidential business consumer meets the criteria stated in subdivision (c)(1)(A) of this section;

(ii) The nonresidential business consumer has exhausted its opportunity to economically conduct further meaningful and cost-effective energy conservation programs and measures; and

(iii) The nonresidential business consumer is unable to realize adequate benefits by participating in the utility-sponsored energy conservation programs and measures for the reasons stated therein.

History. Acts 1977, No. 748, §§ 3, 5; A.S.A. 1947, §§ 73-2503, 73-2505; Acts 2013, No. 253, § 1; 2015, No. 78, § 1; 2017, No. 309, §§ 1, 2; 2017, No. 1102, §§ 2, 3; 2019, No. 910, § 3240.

A.C.R.C. Notes. As amended by Acts 2013, No. 253, § 1, § 23-3-405 contains two different versions of subsection (b). One version sets out the text of subsection (b) before its amendment by Act 253, and the other version illustrates by markup the amendment of the text of that subsection by Act 253. Subsection (b) as set out in the 2013 supplement incorporates the changes made to the text of that subsection by Act 253.

The amendment of subdivision (c)(1)(A)(ii) (b) of this section by Acts 2017, No. 309, § 2 and No. 1102, § 3 could not be reconciled. Pursuant to § 1-2-207(b), § 23-3-405(c)(1)(A)(ii) (b) is set out as amended by Acts 2017, No. 1102. As amended by Acts 2017, No. 309, § 23-3-405(c)(1)(A)(ii) (b) read: “ (b) Has accepted but returned to an applicable public utility through a separate payment to the public utility or through payment of the applicable utility rates any amount received from an applicable public utility calculated from the date of the installation of the last energy conservation program or measure, including any interest and directly attributable rate effects, for:

(1) The installation of any energy conservation programs and measures by the applicable public utility; or

(2) Financing or direct monetary compensation in the form of a rebate or incentive to enable the installation of any energy conservation programs and measures by the applicable public utility.”

Amendments. The 2013 amendment added “Exemptions” in the section heading; added “Except as otherwise stated in this section” at the beginning of (a)(1); substituted “conservation programs and” for “conserving actions or” in (b); and added (c) through (f).

The 2015 amendment rewrote and redesignated the existing language of (c)(1)(A)(ii); and added (c)(1)(A)(ii) (b)

The 2017 amendment by No. 309, in the introductory language of (c)(1)(A), inserted “or a nonresidential business consumer that is a state-supported institution of higher education” and substituted “email” for “electronic mail”; and in the introductory language of (c)(1)(A)(ii)( b ), inserted “to an applicable public utility through a separate payment to the public utility or through payment of the applicable utility rates” and “received from an applicable public utility calculated from the date of the installation of the last energy conservation program or measure”, and deleted “from an applicable public utility” following “effects”.

The 2017 amendment by No. 1102 redesignated former (a)(1) as (a)(1)(A); added (a)(1)(B); in (a)(2), inserted “energy conservation” following “hearings, the”; redesignated (3) as (3)(A) and (3)(B); substituted “the energy conservations programs and” for “such conservation” in present (3)(A); in (3)(B), substituted “At the time the energy conservation programs and” for “At the time any such programs or” and inserted “from consumers who have not opted out of utility-sponsored energy conservation programs and measures under subdivision (c)(1) of this section”; in (c)(1)(A)(ii) (b) , inserted “to an applicable public utility through a separate payment to the public utility or through payment of rates approved under subdivision (a)(3) of this section" and “received from an applicable public utility calculated from the date of the installation of the last energy conservation program or measure”, and deleted “from an applicable public utility” following “effects”; and made stylistic changes.

The 2019 amendment substituted “Arkansas Energy Office” for “Department of Human Services” in (a)(1)(B).

Case Notes

Authority.

Arkansas Public Service Commission had authority to approve a general policy to award incentives to utilities for their achievement in delivering essential energy-conservation services, because under subsection (b) of this section, the “cost” provision was not intended as a limitation on the Commission's ability to pursue other means of promoting energy efficiency. Arkansas Elec. Energy Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 2012 Ark. App. 264, 410 S.W.3d 47 (2012).

Subchapter 5 — Navigable Water Crossings

Effective Dates. Acts 2015, No. 1000, § 8: Apr. 2, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that a recent decision of the Arkansas Court of Appeals has interpreted Act 310 of 1981 in a manner that is inconsistent with the interpretation of the Arkansas Public Service Commission; that this inconsistency impairs public utilities in their recovery, through an interim rate surcharge, of all investments and expenses that are not already included in the public utilities' currently effective rates and that were reasonably incurred by the public utilities as a direct result of legislative or administrative rules, regulations, or requirements relating to the protection of the public health, safety, or the environment; and that this act is immediately necessary to facilitate the timely recovery of investments and expenses so that public utilities may provide services to consumers in this state in a timely, efficient, and cost-effective manner. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

23-3-501. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Commission” means the Arkansas Public Service Commission or any other state agency which may succeed to its powers;
  2. “Navigable water crossing” means:
    1. The crossing of a navigable waterway by a public service facility; or
    2. That portion of the public service facility which is extended over, under, or across a navigable waterway, whether such a crossing is effected by suspending the public service facility from any overhead structure or by laying the public service facility upon or under the bed of the navigable waterway;
  3. “Navigable waterway” means any navigable river, lake, or other body of water used, or susceptible of being used in its natural condition as highways for commerce, located wholly or partly within this state;
  4. “Public service facility” means any of the following:
    1. Electric power line;
    2. Pipeline for the transportation of water; or
    3. Pipeline for the transportation of gas, petroleum, gasoline, fuel, or any other substance capable of being moved through a pipeline as a common carrier or as a noncarrier utility; and
  5. “River crossing proprietor” means the owner, whether a person, a corporation, a company, a firm, partnership, or other association, that owns or proposes to construct a navigable water crossing.

History. Acts 1961, No. 188, § 1; A.S.A. 1947, § 73-2201.

23-3-502. Applicability of subchapter.

Each section of this subchapter shall apply with full effect whether the river crossing proprietor, if incorporated, derives its charter from the laws of Arkansas or of any other state and regardless of whether its activities within this state are those of interstate or intrastate commerce and, in the case of pipelines, regardless of whether its activities in this state are those of a common carrier or noncarrier utility.

History. Acts 1961, No. 188, § 15; A.S.A. 1947, § 73-2215.

23-3-503. Commission's jurisdiction, power, and authority.

  1. The Arkansas Public Service Commission shall have jurisdiction over all navigable water crossings.
  2. The commission shall have the power, authority, and responsibility, subject to the further provisions of this subchapter, to require that a navigable water crossing be constructed or operated in a manner consistent with the public safety and in such a manner as to cause no unlawful interference with some other paramount public or private use of the navigable waterway or its underlying bed at the point of the crossing.
  3. The commission shall further have the power, authority, and responsibility to grant to each river crossing proprietor, from such title or ownership as the State of Arkansas holds in respect to the bed of navigable waterways, all rights required or needed by the river crossing proprietor for the purpose of constructing, operating, repairing, replacing, whether with the same or a different size, dimension, or specification, altering, maintaining, or removing its public service facility at the point of any navigable water crossing.

History. Acts 1961, No. 188, § 2; A.S.A. 1947, § 73-2202.

23-3-504. Petition regarding operation.

Pursuant to the authority granted in this subchapter, the Arkansas Public Service Commission shall require any river crossing proprietor operating or proposing to operate a navigable water crossing to file a verified petition with the commission showing such data and specifications in relation thereto as the commission may reasonably prescribe. The petition may include the following:

  1. The name of the river crossing proprietor and the nature of its organization and the nature of its business;
  2. The river crossing proprietor's principal office and place of business;
  3. A map, based upon a ground survey, showing the location of the public service facility at the point of the existing or proposed navigable water crossing, a drawing showing in some detail the specifications of the proposed crossing, and a profile plat showing, with respect to the mean surface level and the bed of the navigable waterway, the elevations of the existing or proposed public service facility;
  4. A general description of the physical nature of the bed underlying the navigable waterway at the point of the existing or proposed navigable water crossing, if the crossing is to be constructed on the underlying bed;
  5. A description of materials and the type of construction employed or to be employed in effecting the navigable water crossing;
  6. The size, capacity, and purpose of the public service facilities at the point of the navigable water crossing, together with operating conditions and safety factors;
  7. A showing of approval or permissive authorization of the existing or proposed navigable water crossing by the United States Secretary of Defense or the United States Secretary of the Army or other federal agency having jurisdiction to consent to erections in navigable waterways; and
  8. A prayer that the legality of the existing or proposed navigable water crossing be recognized pursuant to this subchapter.

History. Acts 1961, No. 188, § 3; A.S.A. 1947, § 73-2203.

23-3-505. Hearings.

  1. Upon the filing of a petition under § 23-3-504 by a river crossing proprietor which proposes to construct and operate a navigable water crossing, the Arkansas Public Service Commission shall fix a date for hearing the petition.
  2. Unless waived by the parties, the hearing shall be held in the offices of the commission or at such other place as the commission may designate.

History. Acts 1961, No. 188, § 5; A.S.A. 1947, § 73-2205; Acts 2015, No. 1000, § 1.

Amendments. The 2015 amendment added “Unless waived by the parties” in (b).

23-3-506. Objections to petition.

Any person, corporation, company, municipal agency, state agency, or institution whose rights or interests may be affected by such a proposed navigable water crossing may file written objections to the granting of the prayer of the petition.

History. Acts 1961, No. 188, § 6; A.S.A. 1947, § 73-2206.

23-3-507. Grant of petition — Exceptions.

  1. Upon the hearing, if it appears that the United States Secretary of the Army, or such other federal agency as may have jurisdiction to consent to the construction of erections in navigable waterways, has approved or permissively authorized the proposed navigable water crossings, then the Arkansas Public Service Commission shall grant the prayer of the river crossing proprietor's petition unless the commission enters specific findings, based on a preponderance of the evidence, that:
    1. The proposed navigable water crossing, if constructed and operated as proposed, will jeopardize the public safety; or
    2. The construction of the proposed navigable water crossing at the point specified in the petition will result in an unlawful interference with some other paramount public or private use of the navigable waterway or its underlying bed at the point of the proposed crossing.
  2. In the event the commission finds that the proposed navigable water crossing would jeopardize the public safety if constructed and operated as proposed, it may grant the prayer of the river crossing proprietor's petition subject to such alteration of the proposed plans, specifications, and construction methods as may be in the interest of the public safety.

History. Acts 1961, No. 188, § 7; A.S.A. 1947, § 73-2207.

23-3-508. Order granting rights — Effect.

  1. When a river crossing proprietor owning or operating one (1) or more navigable water crossings in this state files with the Arkansas Public Service Commission a petition conforming to the requirements of § 23-3-504, the commission shall enter an order granting such rights to the navigable waterway and the bed thereof as will enable the river crossing proprietor to continue to own, operate, and maintain each navigable water crossing mentioned in the petition.
  2. The grant shall constitute approval and recognition of the legality of the navigable water crossing. However, the approval of a navigable water crossing by the commission shall not relieve the river crossing proprietor of its duty in the subsequent operation of the navigable water crossing to observe such reasonable safety precautions as may prevent conditions jeopardizing the public safety.

History. Acts 1961, No. 188, § 4; A.S.A. 1947, § 73-2204.

23-3-509. Characteristics of rights granted.

Rights in respect to the crossing of navigable waterways granted pursuant to the provisions of this subchapter shall be perpetual and shall inure to the benefit of the river crossing proprietor, its successors, mortgagees, and assigns. However, this subchapter shall not destroy, impair, repeal, or amend any right of eminent domain or reversion inuring either to the state or the river crossing proprietor under the laws of the State of Arkansas or of the United States.

History. Acts 1961, No. 188, § 8; A.S.A. 1947, § 73-2208.

23-3-510. Costs and expenses of proceedings — Damages.

The Arkansas Public Service Commission shall require the applicant to pay all costs and expenses of a proceeding under this subchapter.

History. Acts 1961, No. 188, § 9; A.S.A. 1947, § 73-2209; Acts 1993, No. 344, § 2.

23-3-511. Review by circuit court.

  1. Any party to a proceeding conducted pursuant to this subchapter before the Arkansas Public Service Commission, within twenty (20) days after a final order is made, may file a petition with the Pulaski County Circuit Court against the commission for the purpose of having the lawfulness of its final decision inquired into and determined.
  2. Every such petition to review shall state briefly the nature of the proceeding before the commission and shall set forth the order or decision complained of and the ground upon which the order or decision is claimed to be unlawful.
  3. Upon the filing of a petition to review, the clerk of the circuit court shall mail a notice of the filing of the petition and a copy of the petition to the commission by certified or registered mail. In the alternative, the clerk may cause the notice and a copy of the petition to be served upon either the secretary or chair of the Arkansas Public Service Commission by the Pulaski County Sheriff or his or her deputy.
  4. Thereupon, the commission, within thirty (30) days from the mailing or service of the notice shall answer the petition and certify to the court a complete transcript of the record in the case made before the commission, which shall include a copy of all pleadings, proceedings, testimony, exhibits, orders, findings, and opinions in the case. However, the parties and the commission may stipulate that a specified portion only of the record as made before the commission shall be included in the transcript to be filed with the court.
    1. No new or additional evidence shall be introduced in the court in which such a review is sought, but every case shall be determined upon the transcript of the record made before the commission as certified to by it.
    2. All evidence before the commission shall be considered by the court regardless of any technical rule which might have rendered the evidence inadmissible if originally offered in the trial of any action at law or in equity.
  5. Upon hearing, the court may dismiss the petition to review or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partially vacated, the court may also in its discretion remand the matter to the commission for further procedure not inconsistent with the judgment of the court as, in the opinion of the court, justice may require.
  6. The review shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order or decision under review violated any right of the complainant under the United States Constitution or the Arkansas Constitution.

History. Acts 1961, No. 188, §§ 10-13; A.S.A. 1947, §§ 73-2210 — 73-2213.

23-3-512. Appeal to Supreme Court.

  1. The Arkansas Public Service Commission, the river crossing proprietor, or any other party to an action in the circuit court to review the order of the commission, within thirty (30) days after the entry of the final judgment of the circuit court, may appeal to the Supreme Court.
  2. All such appeals will be advanced on the docket of the Supreme Court as matters of public interest.

History. Acts 1961, No. 188, § 14; A.S.A. 1947, § 73-2214; Acts 2013, No. 1144, § 2.

Amendments. The 2013 amendment repealed former (b).

23-3-513. Replacement of navigable water crossing.

  1. In each instance where a river crossing proprietor may desire to replace a navigable water crossing, it shall file with the Arkansas Public Service Commission a proper petition pursuant to § 23-3-504.
    1. Proceedings upon the petition shall be conducted under §§ 23-3-506, 23-3-507, and 23-3-510, subject to appeal as provided in §§ 23-3-511 and 23-3-512.
    2. In such a proceeding, however, the jurisdiction of the commission will be limited to a determination of whether the construction methods to be employed in replacing the navigable water crossing will jeopardize the public safety, and the river crossing proprietor's right to replace a navigable water crossing may be denied only on that ground.

History. Acts 1961, No. 188, § 16; A.S.A. 1947, § 73-2216.

Subchapter 6 — Gas Utilities — Extension Projects

Publisher's Notes. Acts 1987, No. 150, § 8, provided that this act shall be read in harmony with other acts which predate the passage and approval of this act and shall not be read or construed to repeal any portion of such acts.

Effective Dates. Acts 1987, No. 150, § 10: Mar. 10, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that many areas of the State do not have adequate natural gas services; that this Act provides a mechanism for expediting the extension of natural gas to unserviced areas of the State; and this Act should be given effect immediately in order to provide natural gas to the unserviced areas of the State as soon as possible. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

23-3-601. Purpose — Petition for certificate.

  1. The General Assembly finds that the proportion of the state's population that is without access to service by a gas utility exceeds the proportion of the population that is without access to telephone or electric utility service. Therefore, the General Assembly declares it to be the intent and purpose of this subchapter to increase only the availability of natural gas through the procedures provided in this subchapter and not to make the procedures available to electric or telephone utilities.
  2. A gas utility may at any time petition the Arkansas Public Service Commission for a certificate of extension project. By its petition, the gas utility requests commission authorization to commence an extension project, to expend funds on the extension project, and to concurrently seek commission approval of changes in rates and surcharges sufficient to recover, at the time the plant goes into service, the excess expenditures arising out of the extension projects that have been granted certificates. A petition for a certificate shall provide information about the proposed extension project, including without limitation the following:
    1. An estimate of the cost of the extension project broken down into at least labor, materials, and overhead;
    2. A schedule of estimated completion dates;
    3. A brief description of the physical nature of the facilities, including pipe diameter and length of the extension in feet or miles;
    4. Estimated sales volumes, estimated number and types of customers, growth rates, and expected revenues;
    5. A calculation showing the amount of excess expenditures the gas utility expects to incur;
    6. A detailed description of the economic benefit to the gas utility and the gas utility's existing ratepayers; and
    7. An estimate of:
      1. The surcharge for each class of customer consistent with the most recent determination by the commission in its order addressing the gas utility's most recent application for a general change or modification in its rates and charges; or
      2. The increase in rates for each class of customer if the investment is to be recovered by the gas utility under a formula rate review mechanism pursuant to the Formula Rate Review Act, § 23-4-1201 et seq.

History. Acts 1987, No. 150, § 2; 2017, No. 280, § 1.

Amendments. The 2017 amendment deleted “natural” preceding “gas utility” in the first sentence of (a); in the second sentence of (b), inserted the second occurrence of “extension” and substituted “extension projects that have been granted certificates” for “certificated extension projects”; added (b)(6) and (b)(7); and made stylistic changes.

23-3-602. Definitions.

As used in this subchapter:

  1. “Certificate of extension project” or “certificate” means the Arkansas Public Service Commission order authorizing a gas utility seeking the order to undertake an extension project. The certificate shall be issued contemporaneously with the commission order approving the imposition of rates and surcharges sufficient to recover the excess expenditures arising out of those extension projects that have been granted certificates and completed pursuant to this subchapter;
  2. “Commission” means the Arkansas Public Service Commission;
  3. “Excess expenditures” means the difference between:
    1. Expenditures made by a gas utility for extensions of service to areas not served by a gas utility;
    2. The sum of the investment allowable under a gas utility's extension policy, plus amounts, if any initially available from other applicable sources, which include without limitation funds from:
      1. The Arkansas Economic Development Council or its successor;
      2. Industrial development bonds, municipal bonds, city bonds, or improvement district bonds;
      3. Special funds which may be created by particular commission orders for individual gas utilities in rate cases or other proceedings; and
      4. Customer-provided contributions in aid of construction;
  4. “Extension project” means any extension proposed by a gas utility that is intended to serve areas of Arkansas not served by any gas utility or within the range of the extension policy of any gas utility, which will result in excess expenditures if constructed, and for which the gas utility seeks authorization from the commission to begin, together with the authorization to change its rates and surcharges to recover the excess expenditures as provided in this subchapter;
  5. “Gas utility” means any natural gas public utility jurisdictional to the commission; and
    1. “Surcharge” means a charge that the commission may authorize a gas utility to impose on its customers to recover, at the time the gas utility plant goes into service, the excess expenditures arising out of the extension projects that have been granted certificates.
    2. The amount of the surcharge to be added to the gas utility's rate under subdivision (6)(A) of this section shall be calculated under traditional cost-of-service principles so as to produce the annual revenues equal to the additional annualized revenue requirement to which the gas utility would be entitled had the excess expenditures been included in the gas utility's most recent rate determination by the commission.

History. Acts 1987, No. 150, § 1; 1997, No. 540, § 45; 2017, No. 280, § 1.

Amendments. The 1997 amendment substituted “Arkansas Economic Development Commission” for “Arkansas Industrial Development Commission” in present (4)(B)(i).

The 2017 amendment deleted “unless the context otherwise requires” from the end of the introductory language; substituted “granted certificates” for “certificated” in (1); deleted (3) and redesignated the remaining subdivisions accordingly; substituted “commission” for “Arkansas Public Service Commission” in (5); rewrote (6); and made a stylistic change.

23-3-603. Grant of certificate generally.

  1. The Arkansas Public Service Commission shall grant a certificate if it finds that the proposed extension project is of economic benefit to the gas utility and its existing ratepayers and is in the public interest.
  2. Once the certificate has been granted by the commission, including the approval of the amount and allocation of rates and surcharges, the gas utility may begin construction and may expend funds on the extension project that has been granted a certificate.

History. Acts 1987, No. 150, § 3; 2017, No. 280, § 1.

Amendments. The 2017 amendment added the (a) and (b) designations; in (a), inserted “its existing ratepayers and” and deleted the second sentence; and, in (b), inserted “by the commission” and substituted “extension project that has been granted a certificate” for “certificated extension project”.

23-3-604. Rates and tariffs.

    1. Once an extension project that has been granted a certificate is placed into service and is used and useful, the gas utility may collect the excess expenditures through a rate or surcharge approved by the Arkansas Public Service Commission. The tariff and rate filing made at the time of the certificate application shall include estimated excess expenditures upon which the commission may grant the certificate.
    2. The commission may subsequently modify the previously approved rates in any reasonable manner if the actual total costs and excess expenditures differ significantly from the estimated total costs and excess expenditures.
    3. If the actual total costs and excess expenditures significantly exceed the estimated costs and excess expenditures and the difference is caused by imprudence or other unsatisfactory causes, the commission may disallow recovery of a portion of the actual excess expenditures in the approved rates.
  1. The rate or surcharge implemented under this section remains effective until the implementation of new rate schedules in connection with the next general rate filing of the gas utility wherein such extension project investments can be included in the gas utility's base rate schedules.
  2. The rate or surcharge for each class of customer shall be determined consistent with the most recent determination by the commission in its order addressing the gas utility's most recent application for a general change or modification in its rates and charges.

History. Acts 1987, No. 150, § 4; 2017, No. 280, § 1.

Amendments. The 2017 amendment rewrote the first sentence of (a)(1); deleted “and tariffs” following “rates” in (a)(2); substituted “If the” for “In the event that” in (a)(3); rewrote (b) and (c); and deleted former (d).

23-3-605. Conditions, limitations on grant of certificates.

Certificates shall be granted under this subchapter under the following provisions and conditions:

    1. Only proposed extension projects are eligible for recovery of the cost of excess expenditures under this subchapter.
    2. Proposed extension projects are those for which neither actual construction activity has begun nor expenditures made, other than for planning the extension project, at the time the petition for the certificate is initially filed with the Arkansas Public Service Commission;
  1. Certificates shall be granted under this subchapter only for proposed extension projects that will serve areas not served by any gas utility at the time of the filing of the petition for the certificate;
  2. Certificates shall be granted under this subchapter only if the Arkansas Public Service Commission determines the extension project is of economic benefit to the gas utility and its existing ratepayers and is in the public interest;
  3. Certificates shall not be granted under this subchapter to recover excess expenditures incurred in replacing existing pipelines, equipment, or plants, unless the replacement is necessary for adequate gas supply for the proposed extension project;
  4. When the Arkansas Public Service Commission has granted more than one (1) certificate to a gas utility, the Arkansas Public Service Commission may determine prospectively the sequence in which the gas utility shall commence work on pending extension projects based on whatever reasonable criteria the Arkansas Public Service Commission develops. However, once construction has begun on any given extension project, the Arkansas Public Service Commission determination shall not serve to postpone or defer construction;
    1. There is a limitation on the total annual dollar recovery of excess expenditures to be recovered under § 23-3-604 through rates or surcharges. The limitation is a dollar amount that equals five-tenths of one percent (0.5%) of the gas utility's gross plant at original cost used in determining the gas utility's most recent application for a general change in rates and charges.
    2. As used in this subdivision (6), “gross plant” does not include construction work in progress or portions of extension projects that have been granted certificates and are currently included in the gas utility's base rates; and
  5. With respect to any extension project funded under this subchapter to provide service to a project developer that also receives funds or incentives provided by the Arkansas Economic Development Commission, any agreement between a project developer and the Arkansas Economic Development Commission shall include a provision that any funds provided by a surcharge to recover the cost of an extension project under this subchapter shall be recovered from any project developer that failed to take natural gas service from such an extension project and refunded to ratepayers as directed by the Arkansas Public Service Commission.

History. Acts 1987, No. 150, § 5; 2017, No. 280, § 1.

Amendments. The 2017 amendment redesignated (1) as (1)(A) and (B); inserted “extension” preceding “project” in (1)(B); inserted (3); redesignated former (3)-(5) as (4)-(6); in (4), substituted “excess expenditures” for “costs” and added “unless the replacement is necessary for adequate gas supply for the proposed extension project”; inserted “extension” twice in (5); rewrote (6); added (7); and made stylistic changes.

23-3-606. Petitions not considered rate applications.

Petitions for a certificate under this subchapter are not general rate applications.

History. Acts 1987, No. 150, § 6; 2017, No. 280, § 1.

Amendments. The 2017 amendment substituted “under” for “pursuant to”.

23-3-607. Denial of certificate.

Denial of a certificate under this subchapter does not preclude recovery of the cost of excess expenditures under rates or surcharges, or both, approved pursuant to a gas utility's general rate case or other proceeding in which the Arkansas Public Service Commission finds recovery of the cost of excess expenditures through rates or surcharges appropriate.

History. Acts 1987, No. 150, § 7; 2017, No. 280, § 1.

Amendments. The 2017 amendment substituted “does not” for “shall not”.

Subchapter 7 — Avoided Costs

23-3-701. Legislative determination.

  1. It is declared to be the policy of this state that while the development of qualifying cogeneration and small power production facilities should be encouraged, electric utilities should not be required to purchase power from the facilities at excessive rates which would result in an increase in the cost of providing electrical service to customers of the electric utility.
  2. In furtherance of this declared policy, it is recognized that the Arkansas Public Service Commission has adopted cogeneraton rules and it shall continue to provide for electric utilities to purchase electric energy or capacity from qualifying facilities at rates which are just and reasonable to the electric consumer of the electric utility, which do not increase the cost of providing electrical service to customers of the electric utility, are in the public interest, which do not discriminate against qualifying facilities, and which do not exceed avoided costs.

History. Acts 1987, No. 796, § 1.

23-3-702. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Avoided costs” means the costs to an electric utility of electric energy or capacity, or both, that, but for the purchase from the qualifying facility or qualifying facilities, the utility would generate itself or purchase from another source;
  2. “Commission” means the Arkansas Public Service Commission;
  3. “Purchase” means the purchase of electric energy or capacity, or both, from a qualifying facility by an electric utility;
  4. “Qualifying facility” means a cogeneration facility or a small power production facility which has obtained qualifying status under the cogeneration rules adopted by the Arkansas Public Service Commission pursuant to the Public Utility Regulatory Policies Act of 1978 and the rules and regulations of the Federal Energy Regulatory Commission promulgated under that act; and
  5. “Rate” means any price, rate, charge, or classification made, demanded, observed, or received with respect to the sale or purchase of electric energy or capacity or any rule, regulation, or practice respecting any rate, charge, or classification and any contract pertaining to the sale or purchase of electric energy or capacity.

History. Acts 1987, No. 796, § 2.

U.S. Code. The Public Utility Regulatory Policies Act of 1978, referred to in this section, is Pub. L. No. 95-617, 92 Stat. 3117, which is codified generally as 16 U.S.C. § 2601 et seq.

23-3-703. Establishment of rates.

The Arkansas Public Service Commission shall establish rates to be paid by an electric utility to qualifying cogeneration and small power production facilities which do not, over the term of the purchased power contract, exceed avoided costs and are based upon the preponderance of evidence in the record before the commission. However, rates established for purchases from qualifying facilities whose construction commenced earlier than November 9, 1978, may be ten percent (10%) less than avoided costs.

History. Acts 1987, No. 796, § 3.

23-3-704. Basis of rate determination — Waiver of avoided cost standard.

  1. A determination of the avoided energy cost rate or rates for the electric utility shall be based on the electric utility's estimated avoided costs of producing or purchasing electrical energy during the time period of the purchase of electrical energy from the qualifying facility. It shall not be based upon the production or purchase of electrical energy at any time other than during the time period of the purchasing of electrical energy from the qualifying facility. A determination of the avoided capacity cost rate or rates for the electric utility shall be based at the electric utility's cost of capacity additions or purchases avoided during the time period of the purchase of electrical capacity from the qualifying facility. It shall not be based upon the purchase of electrical capacity at any time other than during the time period of the purchase of electrical capacity from the qualifying facility.
    1. In the event the Arkansas Public Service Commission finds and determines that the avoided cost rate is not necessary to encourage the appropriate amount of construction of qualifying facilities and that a rate less than the avoided cost rate is just and reasonable to the electric consumer of the electric utility, is in the public interest, and will not discriminate against qualifying facilities, the Arkansas Public Service Commission shall take all reasonable and appropriate steps to obtain a waiver of the avoided cost standard from the Federal Energy Regulatory Commission or any successor agency.
    2. In addition, a determination of the avoided cost rate or rates for energy or capacity purchased by an electric utility shall:
      1. Be just and reasonable to the electric consumer of the electric utility and in the public interest; and
      2. Not discriminate against qualifying cogeneration and small power production facilities.
  2. Nothing in this subsection requires any electric utility to pay more than the avoided costs for purchases.

History. Acts 1987, No. 796, §§ 4, 5.

23-3-705. Lower contract rates permitted.

Nothing in this subchapter shall prohibit an electric utility and a qualifying facility from negotiating a contract rate lower than the avoided cost rate established by the Arkansas Public Service Commission for the electric utility.

History. Acts 1987, No. 796, § 6.

Chapter 4 Regulation of Rates and Charges Generally

Subchapter 1 — General Provisions

Cross References. Establishment of rates for certain utilities, § 23-2-304.

General Assembly to pass laws to prevent excessive charges, Ark. Const., Art. 17, § 10.

Effective Dates. Acts 1921, No. 10, § 2: approved Jan. 26, 1921. Emergency declared.

Acts 1921, No. 124, § 27: approved Feb. 15, 1921. Emergency declared.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 2007, No. 647, § 2: Mar. 28, 2007. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the rates paid by customers of public utilities may be affected in a manner that is burdensome to Arkansas utility consumers and harmful to economic development and that the Arkansas Public Service Commission needs to be immediately authorized to employ counsel and experts to protect the utility consumers or Arkansas. Therefore, an emergency is declared to exist and this act being immediately necessary for the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 434, § 2: Mar. 18, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that due to the severe ice storm that struck portions of the state on January 27 and 28, 2009, some of the electric public utilities operating in Arkansas have incurred significant costs in restoring electric service; that electric utility service is essential to the public health and welfare for the preservation of food supplies, heating and cooling of buildings, and operation of commerce that public electric utilities must have financial resources on hand to purchase replacement equipment and to field repair crews swiftly in order to accomplish the prompt restoration of electric service; and that this act is immediately necessary to provide public electric utilities the financial resources necessary to restore service in a timely manner. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

ALR.

Charitable contributions by utility as part of operating expense. 59 A.L.R.3d 941.

Advertising or promotional expenditures of public utility as part of operating expenses for ratemaking purposes. 83 A.L.R.3d 963.

Transportation, freight, mailing, or handling charges billed separately to purchaser of goods as subject to sales or use tax. 2 A.L.R.4th 1124.

Exemption from sales or use tax of water, oil, gas, other fuel, or electricity provided for residential purposes. 15 A.L.R.4th 269.

Amount paid by public utility to affiliate for goods or services as included in utility's rate base and operating expenses in rate proceeding. 16 A.L.R.4th 454.

Validity of preferential utility rates for elderly or low-income persons. 29 A.L.R.4th 615.

Propriety of considering capital structure of utility's parent company or subsidiary in setting utility's rate of return. 80 A.L.R.4th 280.

Public utility's right to recover cost of nuclear power plants abandoned before completion. 83 A.L.R.4th 183.

Public service commission's implied authority to order refund of public utility revenues. 41 A.L.R.5th 783.

Validity, construction, and application of state statute giving carrier lien of goods for transportation and incidental storage charges. 45 A.L.R.5th 227.

Constitutionality, construction, and application of state and local public-utility gross-receipts-tax statutes — modern cases. 58 A.L.R.5th 187.

Am. Jur. 13 Am. Jur. 2d, Carriers, § 141 et seq.

64 Am. Jur. 2d, Pub. Util., § 60 et seq.

C.J.S. 13 C.J.S., Carriers, § 135 et seq.

73B C.J.S., Pub. Util., § 18 et seq.

23-4-101. Authority of commission or department to establish rates — Exceptions.

  1. With respect to the particular public utilities and matters over which each agency has jurisdiction, the Arkansas Public Service Commission or the Arkansas Department of Transportation shall have the power, after reasonable notice and after full and complete hearing, to enforce, originate, establish, modify, change, adjust, and promulgate tariffs, rates, joint rates, tolls, and schedules for all public service corporations, companies, and utilities and all rules with reference thereto and orders directing the performance of any duties devolving on the company, utility, common carrier, or public service corporation under the terms of this act.
  2. Whenever the commission or the department having jurisdiction, after notice and hearing, finds any existing rates, tolls, tariffs, joint rates, or schedules unjust, unreasonable, insufficient, unjustly discriminatory, or otherwise in violation of any of the provisions of the law, the commission or the department shall, by an order, fix reasonable rates, joint rates, tariffs, tolls, charges, or schedules to be followed in the future in lieu of those found to be unjust, unreasonable, insufficient, unjustly discriminatory, inadequate, or otherwise in violation of any of the provisions of this law.
    1. Nothing in this act shall authorize either the commission or the department to make any rule or order whatever to be effective within the limits of any municipality of this state with reference to any tariff, rate, toll, schedule, duty, or action of any public service corporation, company, or public utility operating within the municipality as a street railroad; telephone company; gas company; pipeline company for transportation of oil, gas, or water; electrical company, for the generation or distribution, sale, or supply of electricity for heat, light, or power; water company; or hydroelectric company.
    2. It is the intention of this act, more particularly expressed in other provisions of this act, to confer upon the municipal councils and city commissions of this state jurisdiction as to these matters, so far as they are effective within the limits of any municipality of this state.

History. Acts 1919, No. 571, § 8; C. & M. Dig., § 1619; Acts 1921, No. 124, § 6; Pope's Dig., § 2005; A.S.A. 1947, § 73-119; Acts 2017, No. 707, § 109; 2019, No. 315, §§ 2386, 2387.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. Subsection (c) of this section may be superseded by § 23-4-102(a) with respect to electric, gas, telephone, and sewer utilities.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

The 2019 amendment deleted “and regulations” following “rules” in (a); and deleted “regulation” following “rule” in (c)(1).

Meaning of “this act”. The words “this act” probably refer to both Acts 1919, No. 571 and 1921, No. 124, which are codified as §§ 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, 23-12-301, 23-12-302 and as §§ 14-200-110, 14-200-112, 23-1-114, 23-2-302, 23-2-309, 23-2-311, 23-2-313, 23-2-425, 23-3-113, 23-4-101, 23-4-104, 23-4-110, 23-12-104, respectively.

Case Notes

Cited: Southeast Ark. Freight Lines, Inc. v. Ark. Corp. Comm'n, 204 Ark. 1023, 166 S.W.2d 262 (1942); Bryant v. Arkansas Pub. Serv. Comm'n, 46 Ark. App. 88, 877 S.W.2d 594 (1994); Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 889 (2002).

23-4-102. Commission's authority over interstate rates, charges, classifications, and other actions.

  1. The Arkansas Public Service Commission shall have the power to investigate all existing or proposed interstate rates, charges, and classifications, and all rules and practices in relation thereto promulgated and prescribed by or for any public utility as defined in § 23-1-101, when the matters so investigated shall affect the public of this state.
  2. When the existing or proposed interstate rates, charges, and classifications are in the opinion of the Arkansas Public Service Commission excessive or discriminatory or in violation of any act of the United States Congress or in conflict with the rules, orders, or regulations of a commission created by the United States Congress, the Arkansas Public Service Commission may seek relief in the appropriate commission or in a court of competent jurisdiction.
  3. For the purpose of this section, the Arkansas Public Service Commission:
    1. Is exempt from the provisions of § 25-16-702 whenever the Arkansas Public Service Commission is a party to a proceeding under subsection (b) of this section;
    2. May retain contract attorneys or contract consultants; and
      1. May adopt rules for direct recovery of the fees and expenses of contract attorneys and consultants from the affected utility under this section, provided that the utility is an electric public utility that is owned by a public utility holding company as defined by section 1262 of the Energy Policy Act of 2005, Pub. L. No. 109-58. The maximum amount that may be directly recovered from an affected utility shall be three million dollars ($3,000,000) annually.
        1. In the event the Arkansas Public Service Commission directly recovers the fees and expenses of its attorneys and consultants from an affected utility under this section, that utility shall be allowed to implement a surcharge mechanism to recover only the expenses directly recovered from that utility.
        2. The surcharge shall be established annually to recover only the amounts directly recovered from that utility during the preceding calendar year.
        3. The surcharge mechanism shall include provisions to address any excessive or deficient recoveries during the preceding calendar year. The surcharge shall not include any interest or carrying charges.
        4. Any surcharge must be approved by the Arkansas Public Service Commission before it can be implemented.

History. Acts 1935, No. 324, § 9; Pope's Dig., § 2072; A.S.A. 1947, § 73-203; Acts 2007, No. 647, § 1.

U.S. Code. Section 1262 of the Energy Policy Act of 2005, Pub. L. No. 109-58, referred to in this section, is compiled as 42 U.S.C. § 16451.

Case Notes

Telephone Rates.

Order of commission fixing rates in Arkansas of telephone company which maintained integrated exchange in both Arkansas and Texas did not interfere with interstate commerce within the meaning of the federal Johnson Act and federal district court did not have jurisdiction to enjoin such order of the commission. General Tel. Co. v. Robinson, 132 F. Supp. 39 (E.D. Ark. 1955).

23-4-103. Rates and rules to be reasonable.

All rates made, demanded, or received by any public utility, for any product or commodity furnished, or to be furnished, or any service rendered or to be rendered, and all rules made by any public utility pertaining thereto shall be just and reasonable, and to the extent that the rates or rules may be unjust or unreasonable, are prohibited and declared unlawful.

History. Acts 1935, No. 324, § 10; Pope's Dig., § 2073; A.S.A. 1947, § 73-204; Acts 2019, No. 315, § 2388.

Amendments. The 2019 amendment substituted “Rates and rules” for “Rates, rules, and regulations” in the section heading and made a similar change in the section; and deleted “and regulations” following “rules”.

Cross References. Ratemaking policies for cost of acquisition or construction of incremental resources, § 23-18-107.

Case Notes

Corridor Rates.

Evidence supported the commission's approval of reduced “corridor rates” for industrial customers who would otherwise bypass the utilities resulting in even higher rates for residential customers; corridor rates are a just and reasonable response to the threat of bypass. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Escalator Clauses.

Commission had the authority under this section to determine that proposed escalator clauses of gas company seeking rate increases were not just and reasonable so as to be put into effect under bond. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Remedies.

Orders issued by the Arkansas Public Service Commission pursuant to an audit of costs allocated to telephone company upheld where telephone company's rates produced earnings in excess of a reasonable revenue requirement and an agreement was reached whereby, in lieu of proposed reductions to its rates, the telephone company would make service improvements. Bryant v. Arkansas Pub. Serv. Comm'n, 54 Ark. App. 157, 924 S.W.2d 472 (1996).

Standard of Review.

The appellate court must review the total effect of a rate order, and if the total effect cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Pursuant to the Arkansas Public Service Commission's approval of the sale of an existing telecommunications utility's assets to a new telecommunications utility, where the record was not developed sufficiently for the appellate court to decide the issue of whether the application of PSC's parity order resulted in just and reasonable intrastate switched-access rates, a remand was required. Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 889 (2002).

Cited: Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 824 F.2d 672 (8th Cir. 1987).

23-4-104. Charges, rates, etc., to be just, reasonable, and in compliance with Acts 1919, No. 571, and Acts 1921, No. 124.

  1. All charges, tolls, fares, and rates shall be just and reasonable.
  2. No charge shall be made in any tariffs, rates, fares, tolls, schedules, or classifications except as provided in this act.

History. Acts 1919, No. 571, § 6; C. & M. Dig., § 1611; Acts 1921, No. 124, § 4; Pope's Dig., § 2003; A.S.A. 1947, § 73-116.

Publisher's Notes. This section may be partially superseded by §§ 23-3-113 and 23-4-103.

Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Meaning of “this act”. See note to § 23-4-101.

Case Notes

Corridor Rates.

Evidence supported the commission's approval of reduced “corridor rates” for industrial customers who would otherwise bypass the utilities resulting in even higher rates for residential customers. Corridor rates are a just and reasonable response to the threat of bypass. Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

Cited: Litton Sys. v. Southwestern Bell Tel. Co., 539 F.2d 418 (5th Cir. 1976).

23-4-105. Rate schedules — Filing.

Under such rules and regulations as the commission may prescribe, every public utility shall file with the commission, within such time and in such form as the commission may designate, schedules showing all rates established by or for it, and collected or enforced, or to be collected or enforced, within the jurisdiction of the commission.

History. Acts 1935, No. 324, § 11; Pope's Dig., § 2074; A.S.A. 1947, § 73-205.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

23-4-106. Rate schedules — Public inspection.

Every public utility shall keep copies of its rate schedules open to public inspection under such rules and at such places as the commission may prescribe.

History. Acts 1935, No. 324, § 11; Pope's Dig., § 2074; A.S.A. 1947, § 73-205; Acts 2019, No. 315, § 2389.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Amendments. The 2019 amendment deleted “and regulations” following “rules”.

23-4-107. Rate schedules — Greater or lesser rate not to be charged.

No public utility shall directly or indirectly, by any device whatsoever, charge, demand, collect, or receive from any person a greater or lesser compensation for any service rendered or to be rendered by the public utility than that prescribed in the schedules of the public utility applicable thereto then filed in the manner provided in this act. Nor shall any person receive or accept any service from a public utility for a compensation greater or lesser than that prescribed in the schedules.

History. Acts 1935, No. 324, § 12; Pope's Dig., § 2075; A.S.A. 1947, § 73-206.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

Action for Damages.

Circuit court lacked jurisdiction over civil causes of action in tort which necessarily required an assessment of damages measured by what was the filed rate with the public service commission and what the rate should have been. Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 907 S.W.2d 741 (1995).

Illegal Charges.

To have furnished the appellee unrestricted service for which a specified charge per month was required to be charged, at the restricted service rate of a lesser amount per month, would have constituted a discrimination as against other subscribers in violation of this section. Southwestern Bell Tel. Co. v. Hutton, 203 Ark. 969, 160 S.W.2d 201 (1942).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

23-4-108. Sliding scales of rates.

    1. Nothing in this act shall be taken to prohibit a public utility from establishing or entering into an agreement for a fixed period for a sliding scale or automatic adjustment of charges for public utility service in relation to the dividends to be paid to stockholders of the public utility, or the profit to be realized, or its expenses of operation to be incurred, or other equitable or reasonable basis for the scale or adjustment if a schedule showing the rates under the arrangement is first filed with and approved by the commission.
    2. Nothing in this section shall prevent the commission from revoking its approval at any time and fixing other rates and charges for the product or commodity or service if, after reasonable notice and hearing, the commission finds the existing rates or charges unjust, unreasonable, insufficient, or discriminatory.
  1. The commission shall have the power to fix a reasonable and just sliding scale of rates for public utilities.

History. Acts 1935, No. 324, § 20; Pope's Dig., § 2083; A.S.A. 1947, § 73-219.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-4-107.

Case Notes

In General.

This section provides for a sliding scale or an automatic adjustment of rates, thereby providing for a company to receive a rate increase or decrease depending on the rise or fall of the price the company had to pay for gas to be distributed to its customers. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Surcharge statutes tie surcharges to existing facility costs and costs directly related to legislative or regulatory requirements, and there is no authority granted to the Arkansas Public Service Commission for the implementation of social programs; moreover; the same holds true of sliding-scale ratemaking where the statutory language of this section and Arkansas case law refer to costs associated with gas production and service to the ratepayers, not low-income assistance programs. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Escalator Clauses.

This section seems to recognize some sort of escalator clause to be possible in some situations. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Fixed Period.

The term “fixed period” was deemed by the court to refer to the length of time between adjustments rather than to the length of time the escalator clause was to remain in effect, as the latter could be renewed at any time by the utility filing another one. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Hearings.

A hearing must be held before escalator or sliding rates or scales can go into effect. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Notice.

The court interpreted the language of this section to mean that once the commission fixes a definite rate, it cannot lower the rate without giving notice to the utility and cannot raise the rate without notifying in some way the rate payers. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Petitions for Rate Increases.

Upon petition for rate increase by gas company pursuant to § 23-4-402 et seq., the company had the right when it filed its schedule to ask that its monthly consumption rate go into effect under bond and that proposed escalator clauses be considered upon final hearing. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Cited: Alltel Ark., Inc. v. Arkansas Pub. Serv. Comm'n, 76 Ark. App. 547, 69 S.W.3d 889 (2002).

23-4-109. Minimum charges.

Nothing in this act shall be construed to prohibit a public utility from filing a schedule or entering into any reasonable arrangements with its customers, or prospective customers, which provide for a minimum charge for services to be rendered, or from providing for any other financial device that may be lawful if the schedule or arrangement, before becoming effective, is filed with and approved by the commission. The schedule or arrangement shall be subject to revision or modification on the part of the commission upon complaint or its own motion.

History. Acts 1935, No. 324, § 20; Pope's Dig., § 2083; A.S.A. 1947, § 73-219.

Publisher's Notes. For definition of the term “commission,” see § 23-1-101.

Meaning of “this act”. See note to § 23-4-107.

23-4-110. Changes in rates under Acts 1919, No. 571, and Acts 1921, No. 124.

    1. No person, firm, or corporation subject to the provisions of this act shall modify, change, cancel, or annul any rate, joint rates, fares, classifications, charges, or rentals except after thirty (30) days' notice to the public and to the municipal council or city commission, as the case may be, depending on the utility affected and the action proposed.
    2. The notice shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges shall go into effect.
  1. The particular regulatory body having jurisdiction of the matter under this act may enter an order prohibiting such a person, firm, or corporation from putting the proposed new rates into effect pending hearing and final decision of the matter by the regulatory body.
    1. Whenever there is filed with the regulatory body any schedule proposing a change in any rates, charges, or rules, the regulatory body shall have authority, either upon complaint or upon its own initiative, and upon reasonable notice, to enter upon a hearing concerning the propriety of the rate, charge, or rule.
    2. Pending the hearing and the decision thereon, the regulatory body, upon filing of the schedule or after the schedule should be filed, and upon delivering to the carriers or public service corporations affected thereby a statement in writing of its reasons for such a suspension, may suspend the operation of the schedule and defer the use of the rate or charge.
    3. After a full hearing, whether completed before or after the rate, charge, or rule goes into effect, the regulatory body may make such orders in reference to the rate, fare, charge, or rule as shall be deemed proper and just.

History. Acts 1919, No. 571, § 7; C. & M. Dig., § 1612; Acts 1921, No. 10, § 1; 1921, No. 124, § 5; Pope's Dig., §§ 1937, 2004; A.S.A. 1947, § 73-117; Acts 2019, No. 315, §§ 2390, 2391.

Publisher's Notes. Acts 1919, No. 571, § 32, provided, in part, that the provisions of the act were in addition to and supplemental to the statutes then in force.

Amendments. The 2019 amendment substituted “rules” for “regulations” in (c)(1) and made similar changes in (c)(3).

Meaning of “this act”. See note to § 23-4-101.

Case Notes

Municipal Utilities.

Where municipal utility obtained a change of rates from corporation commission under Acts 1919, No. 571, and appeal was taken to circuit court, circuit court even after the abolition of the Corporation Commission (now Arkansas Public Service Commission) by Acts 1921, No. 124 had authority to determine case de novo. Van Buren Waterworks v. City of Van Buren, 152 Ark. 83, 237 S.W. 696 (1922).

Where utility serving municipality was granted an increase of rates under Acts 1919, No. 571 but on application of the municipality the Corporation Commission (now Arkansas Public Service Commission) set aside its order and granted a rehearing, the old rates were restored and after enactment of Acts 1921, No. 124, the utility had no authority to change rates greater than that authorized by the municipality. Town of Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S.W. 712, cert. dismissed, 260 U.S. 755, 43 S. Ct. 94, 67 L. Ed. 498 (1922).

Net Profits.

The Arkansas Public Service Commission has no authority to discard the rate base method in favor of the field price method in determining the net profits a public utility can earn in this state. Acme Brick Co. v. Arkansas Pub. Serv. Comm'n, 227 Ark. 436, 299 S.W.2d 208 (1957).

Notice.

The filing of a schedule of changes in the rates of an electric light company was sufficient notice to the Corporation Commission (now Arkansas Public Service Commission) and to the public. Harrison Elec. Co. v. Citizens' Ice & Storage Co., 149 Ark. 502, 232 S.W. 932 (1921).

Purchaser of Utility.

In the operation of the business of a public utility such as a natural gas company, it must adhere to the rate fixed and applied to it by the Railroad Commission which fixed the rate, and the purchase of pipelines owned by other gas companies whose rates have been fixed at different amounts by the commission does not modify the rates of the purchasing company. Twin City Pipe Line Co. v. Chambless, 170 Ark. 418, 279 S.W. 1030 (1926).

23-4-111. Valuation of public utility property for ratemaking purposes — Definitions.

  1. As used in this section:
      1. “Public utility” means a public utility as that term is defined under § 23-1-101.
      2. However, “public utility” does not mean an incumbent local exchange carrier that has elected to be regulated under §§ 23-17-406 — 23-17-408 or § 23-17-412;
    1. “Original cost” means the cost incurred by a public utility when plant or property was first devoted to public service; and
    2. “Net book value” means the original cost less reasonable accumulated depreciation of the plant or property.
    1. In determining the value of plant or property that is to be included in the rate base upon which the public utility will be allowed the opportunity to earn a return, the Arkansas Public Service Commission shall use the net book value of the plant or property unless the commission determines that an adjustment is appropriate under subsection (c), subsection (d), or subsection (e) of this section.
    2. However, for affiliate acquisitions, the value of plant or property that is to be included in the rate base upon which the public utility will be allowed the opportunity to earn a return, the commission shall use the net book value of the plant or property or a lesser amount, but in no event may the commission make an adjustment above net book value under subsection (c) of this section.
    3. If the original cost of the plant or property is unknown, the commission shall estimate the net book value.
  2. For plant or property acquired for an amount above net book value, the commission may allow the recovery through rates of an amount greater than net book value but not more than actual cost if the public utility can prove by a preponderance of the evidence that:
    1. The original cost of the plant or property was reasonable and prudent; and
    2. The public utility's customers will receive known and measurable benefits that are at least equal to the incremental amount for which the utility seeks recovery under this subsection.
  3. For plant or property acquired for an amount below net book value, the commission may allow the recovery through rates of an amount greater than the cost of acquisition but not more than the net book value if the public utility can prove by a preponderance of the evidence that:
    1. The original cost of the plant or property was reasonable and prudent; and
    2. The public utility's customers will receive known and measurable benefits that are at least equal to the incremental amount for which the utility seeks recovery under this subsection.
  4. The commission may allow the recovery through rates of an amount less than net book value if the commission determines that the original cost of the plant or property was not reasonable or was imprudent.
  5. However, for plant or property costs incurred in compliance with § 23-18-106(a), the public utility shall have a rebuttable presumption of reasonableness and prudence for the purpose of the commission's determinations in subsections (c)-(e) of this section.

History. Acts 2003, No. 1317, § 1.

23-4-112. Reserve accounting for storm restoration costs.

  1. This section applies to storm restoration costs incurred on or after January 1, 2009.
  2. Upon application by an electric public utility and after notice and hearing, the Arkansas Public Service Commission shall permit an electric public utility to establish a storm cost reserve account consistent with the then-current Federal Energy Regulatory Commission Uniform System of Accounts, as modified to allow a debit balance to reflect the excess of storm restoration costs over the amount recovered in rates or otherwise credited to the storm cost reserve account.
  3. The use of reserve accounting under this section is subject to the following:
      1. The initial amount included in the storm cost reserve account for an electric public utility shall be the amount included in the electric public utility's currently approved rates for storm restoration costs.
      2. Thereafter, in future rate proceedings, the Arkansas Public Service Commission shall determine the appropriate level of the storm cost reserve account considering the electric public utility's historical costs associated with normal storm damage and other factors;
    1. As a condition of an electric public utility's recovery of storm restoration costs through rates or inclusion of storm restoration costs in the storm cost reserve account, the Arkansas Public Service Commission shall audit, analyze, examine, and adjust all storm restoration costs to ensure that only reasonable and prudent storm restoration costs are included in the storm cost reserve account or are recoverable through rates;
    2. Simple interest on any balance, credit, or debit in the storm cost reserve account shall accrue at a rate equal to the electric public utility's last approved rate-base rate of return;
      1. An electric public utility shall only charge operations and maintenance storm restoration costs that are not otherwise recovered against the balance in the storm cost reserve account.
      2. The Arkansas Public Service Commission shall ensure that the storm restoration costs charged to the storm cost reserve account are:
        1. Timely;
        2. Specific to restoring retail electric service in Arkansas; and
        3. Subject to any ratemaking adjustments of the types of expenses included in the storm restoration costs that are consistent with the determination in the electric public utility's most recent application for a general change in rates.
      3. An electric public utility shall:
        1. File a quarterly report with the Arkansas Public Service Commission identifying each instance in which the electric public utility records storm restoration costs in the storm cost reserve account; and
        2. Provide with the quarterly report required by this subdivision (c)(4)(C) supporting documentation prescribed by the Arkansas Public Service Commission that includes without limitation:
          1. Vegetation management spending; and
          2. Labor costs;
      1. If an electric public utility spends less on storm restoration costs than the amount included in the electric public utility's currently approved rates for storm restoration costs in any calendar year, the electric public utility shall credit to the storm cost reserve account any difference between the amount in rates and the amount actually spent on storm restoration costs during that calendar year.
      2. If an electric public utility has received any of the following payments to offset storm restoration costs, the electric public utility shall credit those payments to the storm cost reserve account:
        1. Insurance payments;
        2. Payments from a governmental entity; or
        3. Any other third-party payments; and
      1. The Arkansas Public Service Commission shall determine the following in the electric public utility's next application for a general change in rates:
        1. The recovery of any debit balance in the electric public utility's storm cost reserve account through the electric public utility's rates and charges over a reasonable period; or
        2. The appropriate ratemaking treatment of any credit balance in the electric public utility's storm cost reserve account.
      2. After notice and hearing and a finding that it is in the public interest, the Arkansas Public Service Commission may approve other ratemaking treatment otherwise allowed by law of any balance, credit, or debit in the electric public utility's storm cost reserve account.
      3. The Arkansas Public Service Commission shall establish the method of recovery of a debit balance in the electric public utility's storm cost reserve account and may impose conditions to ensure that amounts recovered through rates are reasonable and prudent.
  4. This section:
    1. Does not prevent the Arkansas Public Service Commission from adjusting an electric public utility's rate of return associated with the increased certainty of recovery of the electric public utility's storm restoration costs as a result of establishing a storm cost reserve account under this section; and
    2. Does not prevent an electric utility from petitioning the Arkansas Public Service Commission to approve other methods of addressing storm restoration costs and the recovery of storm restoration costs through rates as allowed by law.

History. Acts 2009, No. 434, § 1.

Subchapter 2 — Utilities Generally

Cross References. Power to fix rates, § 23-2-304.

Effective Dates. Acts 1905, No. 282, § 4: effective on passage.

Acts 1919, No. 264, § 3: approved Mar. 13, 1919. Emergency declared.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is hereby found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health, and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1951, No. 156, § 4: approved Feb. 26, 1951. Emergency clause provided: “Whereas, it has been ascertained by the General Assembly of the State of Arkansas that the immediate enforcement of this Act is in the public interest, and it being necessary for the preservation of the public peace, health and safety of the State of Arkansas, an emergency is hereby declared, and this Act shall be in full force and effect from and after its passage.”

Acts 1957, No. 275, § 5: Mar. 27, 1957. Emergency clause provided: “Whereas, certain public utility companies furnishing gas, water or electricity in this State have been authorized by the Public Service Commission to make separate charges for the disconnection of meters or other devices used for measuring the units consumed; and

“Whereas, it is common practice among certain public utilities to levy such charge for disconnection of service when in fact there is no physical disconnection of the meter and no other service performed which warrants such charge; and

“Whereas, such practice on the part of such public utility companies results in the utility user having to pay for services not actually received, which unjustly enriches the utility company at the expense of the utility user; and

“Whereas, this Act is reasonably calculated to correct this unjust situation;

“Now, therefore, an emergency is hereby declared to exist, and this act being necessary for the preservation of the public peace, health, safety and welfare, shall take effect and be in force from the date of its approval.”

Acts 1977, No. 164, § 6: Feb. 14, 1977. Emergency clause provided: “It is hereby found and determined by the General Assembly that the establishment of rates and charges of electric, gas and telephone public utilities in this State is nonlocal in nature and is applicable to allocated territories of the respective electric or gas or telephone public utilities; that under present law confusion has resulted, and will likely continue to result from the enactment of different rates by different municipalities served by the same electric or gas or telephone public utility; that discrimination among the customers of the same public utility may result from the establishment of differing rates by municipalities served by the same public utility; that it is in the best interest of the public that the sole and exclusive jurisdiction to determine rates to be charged in this State by electric, gas and telephone utilities be vested in the Arkansas Public Service Commission at the earliest possible date. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 688, § 7: Mar. 28, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Arkansas Public Service Commission to impose civil sanctions is being challenged; that the PSC must have civil sanction authority in order to perform its duties in a timely manner and thereby protect the utility ratepayers of this state; and that this Act is therefore immediately necessary to clarify the Commission's authority. Therefore an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 753, § 4: Apr. 3, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the authority of the Public Service Commission to mandate refunds of overcharges by a public utility is unclear under present law and that such perpetrates an injustice on Arkansas ratepayers; that this Act is designed to correct this situation and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 475, § 3: Mar. 31, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that poor utility load factors are substantially contributing to rapidly escalating utility rates and that the provisions of this act are necessary to maintain reasonable utility rates, and that economic development is important to the future of this state's economy and that advertising by utilities to promote economic development is in the public interest, and that the provisions of this act will aid in alleviating the poor economic condition of the state. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and welfare shall be in full force and effect from and after its passage and approval.”

Acts 1987 (1st Ex. Sess.), No. 44, § 2: June 19, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that allowing public utilities to pass through the cost of economic advertising to utility customers will increase the cost of utility service to such customers and that the cost of economic development advertising should be borne by the stockholders of public utilities unless the Public Service Commission determines that such costs should be recovered from ratepayers. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health, and welfare shall be in full force and effect from and after its passage and approval.”

Acts 2003, No. 204, § 19: Feb. 21, 2003. Emergency clause provided: “It is found and determined by the Eighty-fourth General Assembly that certain provisions of the Electric Consumer Choice Act of 1999, as amended by Act 324 of 2001, for the implementation of retail electric competition may take effect prior to ninety-one (91) days after the adjournment of this session; that this act is intended to prevent such implementation; and that unless this emergency clause is adopted, this act may not go into effect until further steps have been taken toward retail electric competition, which the General Assembly has found not to be in the public interest. The General Assembly further finds that uncertainty surrounding the implementation of the Electric Consumer Choice Act during the ninety (90) days following the adjournment of this session and uncertainty regarding the recovery of reasonable generation costs, could discourage electric utilities from acquiring additional generation resources; that retail electric customers will require such resources; and that this act, in Section 11 and elsewhere, provides procedures to facilitate the acquisition of these resources. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

ALR.

Amount paid by public utility to affiliate for goods or services as includable in utility's rate base and operating expenses in rate proceeding. 16 A.L.R.4th 454.

Preferential utility rates for elderly or low-income persons. 29 A.L.R.4th 615.

Am. Jur. 64 Am. Jur. 2d, Pub. Util., § 94 et seq.

C.J.S. 73B C.J.S., Pub. Util., § 18 et seq.

23-4-201. Electric, gas, telephone, or sewer utilities — Rate-making authority — Definition.

    1. The Arkansas Public Service Commission is vested with the sole and exclusive jurisdiction and authority to determine the rates to be charged for each kind of product or service to be furnished or rendered by electric, gas, telephone, or sewer public utilities in Arkansas.
    2. Cities and towns in this state shall have no authority acting either through their governing bodies or by the initiative of their citizens to assume or exercise any jurisdiction or authority to fix and determine rates charged in Arkansas by electric, gas, or telephone public utilities.
  1. As used in this section, “electric, gas, telephone, or sewer public utilities” includes persons and corporations or their lessees, trustees, and receivers who own or operate, in this state, equipment or facilities for producing, generating, transmitting, delivering, furnishing, or collecting electricity, sewage, or gas for the production of light, heat, or power, or for the collection of sewage or other waste; who convey or transmit messages or communications by telephone or telegraph to, or for, the public for compensation who produce, generate, transmit, deliver, or furnish electricity or gas to any other person or corporation for resale or distribution to, or for, the public for compensation or for operating or maintaining sewer facilities. This term shall not include those utilities owned or operated by municipalities or leased by them to a nonprofit corporation.
  2. The General Assembly determines that the existing procedures whereby rates described in this section may be determined and fixed by the cities and towns of the State of Arkansas acting through their governing bodies or by the initiative of their citizens have resulted in a multiplicity of rate determination proceedings and forums which are costly and inefficient, have created conflicts between the rates charged in different cities and towns for the same services thus establishing unreasonable preferences to certain citizens, and have discriminated unfairly against the citizens of certain cities and towns to the detriment and at the expense of those citizens and the citizens of the entire State of Arkansas.
  3. Nothing in this section shall be construed to change or alter the rates being charged for electric, gas, telephone, or sewer public utility services until changed by order of the commission in the manner provided by law.

History. Acts 1977, No. 164, §§ 1-3, 5; A.S.A. 1947, §§ 73-202a, 73-202a note, 73-202b, 73-202b note.

Cross References. Jurisdiction over utilities and appeals, § 14-200-101.

Research References

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Administrative Law, 2 U. Ark. Little Rock L.J. 157.

Case Notes

Collective Bargaining Agreements.

In ratemaking proceeding, Arkansas Public Service Commission was not preempted by National Labor Relations Act from adjusting downward the costs associated with wages and benefits set by collective bargaining agreement where commission found those costs disproportionate to those at similar companies. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 824 F.2d 672 (8th Cir. 1987), cert. denied, 485 U.S. 989, 108 S. Ct. 1293, 99 L. Ed. 2d 503 (1988).

Commission's Authority.

While it is true that § 14-200-101 grants municipalities the right to establish terms and conditions upon which public utilities may be permitted to operate within the borders of municipalities, this section clearly divests the cities and towns of any jurisdiction to fix or determine rates and grants exclusive jurisdiction to the Arkansas Public Service Commission in rate-making matters. City of Ft. Smith v. Arkansas Pub. Serv. Comm'n, 278 Ark. 521, 648 S.W.2d 40 (1983).

The General Assembly has delegated investigation and rate-making authority to the Arkansas Public Service Commission; the commission is the fact finder and in performing its legislatively delegated function of rate-making the commission has broad discretion. City of Ft. Smith v. Arkansas Pub. Serv. Comm'n, 278 Ark. 521, 648 S.W.2d 40 (1983).

To the extent that matter involved a dispute over rates charged by power company, its resolution fell within the purview and jurisdiction of the public service commission. Cullum v. Seagull Mid-South, Inc., 322 Ark. 190, 907 S.W.2d 741 (1995).

Commission's Jurisdiction.

Supreme Court of Arkansas granted a gas utility company's writ of prohibition from a county court's denial of the company's motion to dismiss finding that the Arkansas Public Service Commission had sole and exclusive jurisdiction under subdivision (a)(1) of this section over Arkansas residential gas customers' claims that they were being charged too much for natural gas because of the company's alleged fraudulent conduct. Centerpoint Energy, Inc. v. Miller County Circuit Court, 370 Ark. 190, 258 S.W.3d 336 (2007).

Municipal Authority.

Section 14-200-101 empowers Arkansas municipalities to assess utility franchises operating within the municipalities, and telephone companies are not excluded. City of Little Rock v. AT&T Communications, 318 Ark. 616, 888 S.W.2d 290 (1994).

Rates Effective Immediately.

Since courts of equity lack concurrent jurisdiction with the Arkansas Public Service Commission in setting utility rates, rates approved by the commission may be put into effect immediately without posting a bond, and notwithstanding any provision of a municipal franchise such a utility may have been granted. General Tel. Co. v. Lowe, 263 Ark. 727, 569 S.W.2d 71 (1978).

23-4-202. Water, gas, or electricity bills rendered in accordance with rate schedules — Rate schedule furnished on request.

  1. It shall be unlawful for any public utility furnishing water, gas, or electricity to the general public in the State of Arkansas to bill or render statements to its customers, patrons, or consumers except in accordance with rate schedules duly filed with the Arkansas Public Service Commission in the manner provided by law.
  2. On request by any customer, patron, or consumer, a public utility engaged in the business of the sale or distribution of water, gas, or electricity to the general public shall furnish a copy of the rate schedule under which the customer, patron, or consumer making the request is billed for the service.
    1. Upon a finding by the commission that any jurisdictional water, gas, telephone, or electric public utility has knowingly, willfully, and purposefully violated any of the provisions of this section, by agent or otherwise, the commission shall assess a civil sanction of one thousand dollars ($1,000) on the utility.
    2. Each instance of violation shall constitute a separate violation. However, in case of a continued violation, each day's continuance thereof shall not be deemed to be a separate and distinct violation.
    3. The power and authority of the commission to impose civil sanctions are not to be affected by any other proceeding, civil or criminal, concerning the same violation, nor shall the imposition of the sanction preclude the commission from imposing other sanctions as are provided for by law.
    4. The proceeds from the civil sanctions imposed under this section shall be deposited into the State Treasury as special revenues and credited to the Public Service Commission Fund.
    5. The imposition of a civil sanction under this section is subject to review by the commission and by the Court of Appeals in the manner provided by §§ 23-2-422 — 23-2-424.

History. Acts 1951, No. 156, §§ 1, 2; 1985, No. 688, § 1; A.S.A. 1947, §§ 73-205.1, 73-205.2.

Publisher's Notes. The 1985 amendment to subsection (c) of this section provides for sanctions against telephone utilities that violate the provisions of this section. However, subsections (a) and (b) of this section, which were not amended, apply only to water, gas, and electric utilities.

23-4-203. Water, gas, or electricity — Utility bills must show units charged for.

    1. All water, gas, or electric companies shall base their charges for their commodities upon the reading of the meters and shall charge for the commodities as per printed tables supplied to patrons.
    2. The bills or statements rendered to patrons shall show the number of units charged for.
    1. Upon a finding by the Arkansas Public Service Commission that any jurisdictional water, gas, telephone, or electric public utility has knowingly, willfully, and purposefully violated any of the provisions of this section, by agent or otherwise, the commission shall assess a civil sanction of one thousand dollars ($1,000) on the utility.
    2. Each instance of violation shall constitute a separate violation. However, in case of a continued violation, each day's continuance thereof shall not be deemed to be a separate and distinct violation.
    3. The power and authority of the commission to impose the civil sanctions are not to be affected by any other proceeding, civil or criminal, concerning the same violation, nor shall the imposition of the sanction preclude the commission from imposing other sanctions as are provided for by law.
    4. The proceeds from the civil sanctions imposed under this section shall be deposited into the State Treasury as special revenues and credited to the Public Service Commission Fund.
    5. The imposition of a civil sanction under this section is subject to review by the commission and by the Court of Appeals in the manner provided by §§ 23-2-422 — 23-2-424.

History. Acts 1905, No. 282, §§ 2, 3, p. 700; C. & M. Dig., §§ 7616, 7617; Pope's Dig., §§ 9726, 9727; Acts 1985, No. 688, § 2; A.S.A. 1947, §§ 73-211, 73-212.

Publisher's Notes. The 1985 amendment to subsection (b) of this section provides for sanctions against telephone utilities that violate the provisions of this section. However, subsection (a) of this section, which was not amended, applies only to water, gas, and electric utilities.

Case Notes

Minimum Charges.

Companies may make a regular minimum monthly charge for readiness to serve. Little Rock Ry. & Elec. Co. v. Newman, 91 Ark. 89, 120 S.W. 824 (1909).

23-4-204. Water, gas, or electricity — Disconnecting charges unlawful — Penalty.

  1. It shall be unlawful for any public utility furnishing water, gas, or electricity to the general public to make a charge for disconnecting service.
  2. Any public utility described in subsection (a) of this section which makes a charge for disconnecting service in violation of this section shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500), and each violation shall constitute a separate offense.

History. Acts 1957, No. 275, §§ 1, 3; A.S.A. 1947, §§ 73-204.1, 73-204.3.

Publisher's Notes. Acts 1957, No. 275, § 2, revoked any authority previously granted to utilities to make disconnecting charges or to the Public Service Commission to approve such charges in violation of that act.

23-4-205. Refunds.

  1. The Arkansas Public Service Commission is hereby empowered, following notice and hearing, to order any public utility subject to its jurisdiction to make refunds. The refunds shall be made in the manner and to the extent determined just and reasonable by the commission.
  2. The authority of the commission to make refunds shall include, but is not limited to, the following circumstances:
    1. When a utility implements rates under bond, and the rates approved in the final order of the commission are less than the bonded rates;
    2. When a utility has charged its ratepayers an amount in excess of the utility's approved tariffs;
    3. When a utility imposes on ratepayers any charge prohibited by, or in excess of, any Arkansas statute;
    4. When a utility charges more than the lawful rate of interest; and
    5. When a utility has collected revenues exceeding those amounts authorized by any contract approved by the commission pursuant to § 23-3-117.
  3. When the commission determines that refunds are due under this section, the commission may authorize the utility to make a refund in one (1) lump sum, or may authorize the utility to prorate the refunds over the period of time over which the amount to be refunded had accrued, or some intermediate period of time as the commission deems appropriate. The commission may require that the refund be made by cash or check, or through customers' account credits. However, any refund of ten dollars ($10.00) or less shall be by billing credit only. All refunds, of whatever amount, to customers who cannot be located shall be made pursuant to subsection (e) of this section. Former customers who can be located shall be paid by cash or check.
  4. The commission may order that refunds due under this section be made with interest computed at a rate not to exceed the maximum allowed by Arkansas law.
  5. When a refund is due a customer and the utility cannot, after diligent effort, locate the customer, the utility shall:
    1. Make the refunds available to the customer for a period of three (3) years from the date the refund was ordered; and
    2. Apply those funds which are not claimed after three (3) years as a credit against bad-debt expense of the utility.
  6. Nothing in this section shall be construed as allowing retroactive ratemaking or otherwise providing for refunds of rates collected pursuant to previous orders of the commission, except when rates have been placed in effect under bond, subject to refund.

History. Acts 1935, No. 324, § 8; Pope's Dig., § 2071; Acts 1985, No. 753, § 1; A.S.A. 1947, § 73-202.

Case Notes

Authority of Commission.

The Arkansas Public Service Commission is a creature of the legislature and, in ratemaking, it is performing a legislative function which has been delegated to it; the commission was created to act for the General Assembly and it has the same power that body would have when acting within the powers conferred upon it by legislative act. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Cited: City of Fort Smith v. Dep't of Pub. Utils., 195 Ark. 513, 113 S.W.2d 100 (1938); Southwestern Bell Tel. Co. v. Norwood, 212 Ark. 763, 207 S.W.2d 733 (1948); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956); Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); Independent Theatre Owners, Inc. v. Arkansas Pub. Serv. Comm'n, 235 Ark. 668, 361 S.W.2d 642 (1962); Summers Appliance Co. v. George's Gas Co., 244 Ark. 113, 424 S.W.2d 171 (1968); Southwestern Elec. Power Co. v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975); Arkansas Pub. Serv. Comm'n v. Arkansas Elec. Coop. Corp., 273 Ark. 170, 618 S.W.2d 151 (1981); Redfield Tel. Co. v. Arkansas Pub. Serv. Comm'n, 273 Ark. 498, 621 S.W.2d 470 (1981).

23-4-206. Interest on deposits.

  1. Whenever any person, company, or corporation furnishing patrons or consumers with power, gas, water, electricity, or telephone service shall require a deposit from the consumer before the utility will be supplied to him or her or before a meter will be installed by the person, company, or corporation, then, in every case, the person putting up the deposit, when the deposit is taken down or meter removed, shall receive interest on the deposit until it is returned to the patron or consumer, provided all bills due for service furnished have been paid by the patron or consumer.
    1. The interest paid on any deposit shall be computed using simple interest, applying such annual rates as the commission shall determine from year to year.
    2. The annual interest rate applicable to deposits shall be determined annually by the Arkansas Public Service Commission following notice and hearing. Each year, the commission shall enter its order setting the annual rate of interest no later than December 31 for the following year. The new annual rate shall become effective January 1 of the following year and shall remain in effect for the remainder of the calendar year, or until such later time as the commission shall enter its order establishing a new rate.
    3. The annual rate of interest set by the commission for any year shall not be more than ten percent (10%).
  2. This section shall not apply to cities or towns of a population of less than three thousand (3,000) persons that have granted franchises for electric current for lighting and other purposes furnished by manufacturing establishments not solely engaged in the manufacture of electric current for lighting and other purposes.

History. Acts 1919, No. 264, § 1, 2; C. & M. Dig., §§ 7549, 7550; Pope's Dig., §§ 9623, 9624; Acts 1985, No. 306, § 1; 1985, No. 1054, § 1; A.S.A. 1947, §§ 73-213, 73-214; Acts 1995, No. 843, § 1.

Case Notes

Refunds.

Where the Arkansas Public Service Commission ordered the telephone company to make refunds, the interest rate on such refunds was not dictated by this section, although this section would be worthy of consideration by the commission. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

23-4-207. Advertising costs — Definitions.

  1. As used in this section, unless the context otherwise requires:
    1. “Advertising” means the commercial use by a utility of any medium including newspaper, bill enclosures, radio, and television in order to transmit a message to a substantial number of members of the public or to the utility's consumers;
    2. “Informational advertising” means any advertising for the purpose of instructing customers in the use of service or providing information about the service;
    3. “Political advertising” means any advertising for the purpose of influencing public opinion with respect to legislative, administrative, or electoral matters; and
    4. “Promotional advertising” means any advertising for the purpose of encouraging any person to select or use any utility service. However, advertising which promotes or encourages the use of more energy-efficient appliances or the installation or usage of energy conservation measures as permitted in subsection (c) of this section shall not be considered to be promotional advertising for purposes of this section.
  2. No public utility, as that term is defined by § 23-1-101, shall charge, demand, collect, or receive from its customers or any person other than the shareholders or other owners of the utility any direct or indirect expenditure for promotional or political advertising.
  3. Notwithstanding the provisions of subsection (b) of this section, but subject to the review of the Arkansas Public Service Commission, public utilities may properly recover from customers reasonable costs for advertising which comes within one (1) or more of the following categories:
    1. Advertising that informs electric and gas consumers how they can conserve energy or can reduce peak demand for electric energy;
    2. Advertising that is designed to promote the more efficient use of energy or energy resources within this state;
    3. Advertising concerning employment opportunities with the utility;
    4. Advertising which promotes or encourages the use of energy in such a way as to improve or maintain a utility's load factor or which promotes or encourages the acquisition, installation, or use of energy-efficient appliances, equipment, or energy conservation measures, or load management techniques including, but not limited to: caulking, weatherstripping, furnace efficiency modifications, installation or replacement of energy-efficient furnaces or boilers or furnace replacement burners, flue opening modifications, electrical or mechanical ignition systems, installation or replacement of energy-efficient air conditioning systems, heat pumps, ceiling insulation, wall insulation, floor insulation, duct insulation, pipe insulation, water heater insulation, storm windows, thermal windows, storm or thermal doors, heat-reflective and heat-absorbing windows or door material, clock thermostats, and devices associated with load management techniques;
    5. Any explanation of existing or proposed rate schedules, or notifications thereof;
    6. Information concerning the impact of facility siting, operations, or future plans on surrounding areas and populations;
    7. Information concerning operations at company facilities that may potentially affect the public safety, convenience, and welfare;
    8. Advertising which promotes economic development in the State of Arkansas where the utility can demonstrate, and the commission shall find, that the advertising expenditures were directly related to, and were reasonably incurred in the promotion of, the economic development of this state. Collection from customers of the utility of advertising expenditures shall be limited to those expenditures actually incurred within the test year utilized for ratemaking purposes as defined in § 23-4-406 and shall further be limited to five-one-hundredths of one percent (.05%) of the utility's revenues during that test year; and
    9. Any other advertising which the commission determines should be recovered from the ratepayers.
  4. Notwithstanding any other provisions of this section, and subject to approval by the commission, telephone utilities may recover from persons other than shareholders any direct or indirect expenditure for promotional and informational advertising regarding competitive service offerings.

History. Acts 1983, No. 910, §§ 1, 2; A.S.A. 1947, §§ 73-277, 73-277.1; Acts 1987, No. 475, § 1; 1987 (1st Ex. Sess.), No. 44, § 1.

23-4-208. Water and sewer services for military installations.

The Arkansas Public Service Commission shall have jurisdiction to set rates to be paid by military installations for water and sewer services provided by a municipality located in a county having a population in excess of two hundred thousand (200,000) persons if the governing body of the municipality petitions the commission to exercise this jurisdiction.

History. Acts 1988 (4th Ex. Sess.), No. 21, § 2.

Cross References. Military affairs, § 12-60-101 et seq.

Powers of municipalities generally, § 14-54-101 et seq.

23-4-209. Transition costs — Definition.

    1. As used in this section, “transition costs” means those costs, investments, or unfunded mandates, either recurring or nonrecurring, incurred by an electric utility after July 30, 1999, that are found to have been necessary to carry out the electric utility's responsibilities associated with efforts to implement retail open access or were mandated by statute or rule and are not otherwise recoverable.
    2. In no event shall transition costs include retirement or severance programs, marketing or promotional activities, professional or advisory services, or legal costs associated with any competitive strategy.
    3. In no event shall costs that are allowable in the utility's regulated cost of service and rates be included as transition costs, and the electric utility shall be required to demonstrate that its requested transition cost recovery does not contain amounts that are otherwise reflected in current rate levels.
    4. Additionally, no electric utility shall recover transition costs unless approved by the Arkansas Public Service Commission pursuant to this chapter.
    1. An electric utility shall be allowed to recover transition costs incurred no later than January 1, 2002, as may be determined by the commission after notice and hearing.
    2. The recovery shall be by a customer transition charge during a period of time ending thirty-six (36) months after February 21, 2003.
    3. The customer transition charges shall be subject to annual review by the commission. Costs included in the charges shall be prudent, reasonable, and directly caused by Acts 1999, No. 1556, and rules and orders adopted by the commission to implement that act.
  1. An electric utility shall have a right to recover from its customers any nuclear decommissioning costs, as determined by the commission, associated with the utility's generating assets. The commission shall retain jurisdiction sufficient to authorize the recovery of those costs.

History. Acts 2003, No. 204, § 9; 2019, No. 315, § 2392.

A.C.R.C. Notes. Acts 2003, No. 204, § 16, provided:

“Nothing in this act shall alter or diminish the Arkansas Public Service Commission's authority under otherwise applicable law.”

Amendments. The 2019 amendment substituted “rule” for “regulation” in (a)(1).

Subchapter 3 — Consumer Utilities Rate Advocacy Division

Effective Dates. Acts 1981 (1st Ex. Sess.), No. 39, § 7: Dec. 11, 1981. Emergency clause provided: “It is hereby found and determined by the Seventy-Third General Assembly, meeting in Extraordinary Session, that there is an immediate need to establish an office to effectively promote and rigorously advocate the interests of the ratepayers in Arkansas in all hearings, conferences and other meetings in state and federal agencies concerning utility rates, and that only by the immediate passage of this Act will such advocacy be provided. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in effect from and after its passage and approval.”

23-4-301. Title.

This subchapter shall be referred to and may be cited as the “Consumer Utilities Rate Advocacy Division Act”.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 1; A.S.A. 1947, § 73-217n.

Case Notes

Cited: Bryant v. Arkansas Pub. Serv. Comm'n, 53 Ark. App. 114, 919 S.W.2d 522 (1996).

23-4-302. Legislative findings and purpose.

  1. The General Assembly finds that:
    1. The people of the State of Arkansas are faced with rapidly rising utility costs;
    2. Residents of the state are finding it increasingly difficult to afford basic utility usage;
    3. The people of Arkansas need aggressive and effective representation in utility rate hearings and other utility-related proceedings; and
    4. In order to make informed decisions about their energy consumption, the people of this state need to be informed about the rate-making process and the opportunity to reduce utility bills through conservation measures and the use of alternative energy sources.
  2. The General Assembly finds that the public policy and responsibility of the state as set forth in this section can best be attained with the establishment of the Consumer Utilities Rate Advocacy Division within the Office of the Attorney General, and it is the purpose of this subchapter to create this division.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 2; A.S.A. 1947, § 73-217n.

23-4-303. Creation.

There is created within the Office of the Attorney General a Consumer Utilities Rate Advocacy Division.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 3; A.S.A. 1947, § 73-217n.

23-4-304. Director and staff.

The Director of the Consumer Utilities Rate Advocacy Division shall hold the title of Deputy Attorney General and shall be appointed to the position by the Attorney General who may also appoint such assistants, professionals, and clerical staff as authorized by appropriation acts for the effective operation of the division.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 3; A.S.A. 1947, § 73-217n.

23-4-305. Powers and duties.

The Consumer Utilities Rate Advocacy Division shall represent the state, its subdivisions, and all classes of Arkansas utility rate payers and shall have the following functions, powers, and duties:

  1. To provide effective and aggressive representation for the people of Arkansas in hearings before the Arkansas Public Service Commission and other state and federal courts or agencies concerning utility-related matters;
  2. To disseminate information to all classes of rate payers concerning pertinent energy-related concepts; and
  3. To advocate the holding of utility rates to the lowest reasonable level.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 4; A.S.A. 1947, § 73-217n.

Case Notes

Scope of Authority.

The fact that this section gives the Attorney General the power to represent all classes of utility ratepayers before the commission does not mean that the Attorney General has veto power over the methodology employed by the commission in setting rates pursuant to the authority granted the commission under § 23-2-301. Bryant v. Arkansas Pub. Serv. Comm'n, 46 Ark. App. 88, 877 S.W.2d 594 (1994).

Settlement Agreement.

The Attorney General's support of a Stipulation and Settlement Agreement with the Arkansas Power and Light Company did not violate the statutory mandate of this section. Arkansas Elec. Energy Consumers v. Arkansas Pub. Serv. Comm'n, 35 Ark. App. 47, 813 S.W.2d 263 (1991).

Where the Arkansas Attorney General represented the state and all classes of utility ratepayers in administrative proceeding, a settlement the Attorney General entered into in the proceeding barred by the doctrine res judicata a later administrative proceeding commenced by ratepayers; the Attorney General had represented the ratepayers' interest in the first administrative proceeding. Brandon v. Arkansas W. Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001).

Cited: General Tel. Co. of Southwest v. Arkansas Pub. Serv. Comm'n, 295 Ark. 595, 751 S.W.2d 1 (1988).

23-4-306. Intervention by others not precluded.

The right of any party to intervene on any matter before the Arkansas Public Service Commission is by no means precluded by this subchapter.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 4; A.S.A. 1947, § 73-217n.

23-4-307. Records.

The Attorney General shall designate an employee who is familiar with cost accounting methods to keep an accurate record of the costs of operation and maintenance of the Consumer Utilities Rate Advocacy Division within the Office of the Attorney General.

History. Acts 1981 (1st Ex. Sess.), No. 39, § 5; A.S.A. 1947, § 73-217n.

Subchapter 4 — Utilities — Rate Changes and Surcharges Generally

Effective Dates. Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1980 (2nd Ex. Sess.), No. 4, § 6: May 8, 1980. Emergency clause provided: “It is hereby found and determined by the General Assembly that the proper regulation of utilities in Arkansas requires that the procedure by which changes in rates are made be amended. This amendment is necessary in order that the needs of the companies may be properly considered while ratepayers are also properly protected. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall take effect and be in full force from the date of its passage and approval.”

Acts 1981 (1st Ex. Sess.), No. 24, § 4: Dec. 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that inflation and mushrooming energy costs have imposed upon the Public Service Commission of this State an unusually heavy work load of considering and issuing final determinations and orders in regard to numerous public utility rate applications; that a number of public utilities are filing additional rate applications while an application then pending before the commission is still under consideration, a practice commonly referred to as ‘pancaking,’ which imposes a severe additional work load upon the Commission and detracts from the Commission's prompt and speedy resolution of the rate applications then pending; and that the immediate passage of this Act is necessary to provide for a more orderly manner of filing rate applications before the Commission, which will enable the Commission to consider each application and make an early and prompt determination and order in regard thereto, without facing the additional burden of new rate filings by the same public utility, which compounds the problems of the Commission and its staff in making an orderly determination of the application then pending. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1981 (1st Ex. Sess.), No. 30, § 8: Dec. 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the existing laws of this State authorize public utilities to put proposed rates into effect under bond while the Public Service Commission still has the rate application under consideration; that said laws are working an inequity upon the ratepayers of the State and deny to the Public Service Commission authority to deny such application to place such rates into effect under bond, without first determining that an emergency exists which justifies the same; and that the immediate passage of this Act is necessary to correct said situation and to enable the Public Service Commission to determine that an emergency exists before a pending rate filing may be placed into effect under bond by the public utility prior to final determination and order by the Public Service Commission. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 911, § 3: Mar. 30, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly of this State that the practice of public utilities collecting rates under bond during the rehearing and judicial review process works an undue hardship on the people of this state, and immediate correction of this hardship is necessary in order to preserve the public safety, health, peace, and general welfare of the state. Therefore, an emergency is declared to exist, and this Act shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 339, § 3: Mar. 13, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law relating to the filing of general rate increases by public utilities is inadequate to protect utility users and to enable the Public Service Commission to effectively scrutinize successive rate increase requests of such utilities; that this Act is designed to regulate and restrict the so-called practice of ‘pancaking’ rate increase applications by utilities and should be given effect immediately. Therefore, an emergency is declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1987, No. 994, § 4: Apr. 14, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of the case Ricarte v. State, CR 86-31, a question has arisen over the validity of Act 1181 of the Extended Session of 1976; that this Act is a reenactment of the former law; and that the immediate passage of this Act is necessary to clarify the state of the law on this issue. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 2015, No. 725, § 4: Mar. 27, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the costs that drive public utility rates are changing; that public utilities need to have procedures that permit their rates to change in response to those changing conditions; that there is a need to address the allocation of costs and design of rates; that there is a need to maintain stable rates and to mitigate the magnitude of future rate changes; and that affordable electricity and natural gas encourage economic activity within the state and benefit the state's industries to increase the number of available jobs and to attract new businesses and industries to the state. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

Am. Jur. 64 Am. Jur. 2d, Pub. Util., § 94 et seq.

C.J.S. 73B C.J.S., Pub. Util., § 18 et seq.

23-4-401. Notice of intention to file application.

  1. Every public utility shall notify the secretary of the Arkansas Public Service Commission in writing of its intention to file an application for a general change or modification in its rates and charges at least sixty (60) days but no earlier than ninety (90) days before the application is filed.
  2. Failure to provide such notice or failure to comply with its terms shall be grounds for denial of the application. Such grounds may be waived by the Arkansas Public Service Commission when the public interest permits.

History. Acts 1981 (1st Ex. Sess.), No. 30, § 3; A.S.A. 1947, § 73-217.4.

23-4-402. Notice of proposed changes.

  1. Unless the Arkansas Public Service Commission otherwise orders, no public utility shall make any change in any rate duly established under this act except after thirty (30) days' notice to the commission. This notice shall plainly state the changes proposed to be made in the rates then in force and the time when the changed rates will go into effect.
  2. The utility shall also give notice of the proposed changes to other interested parties as the commission in its discretion may direct.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

Contents.

There is nothing fatal to a position for a rate increase merely because the petition asks for more than is allowed on preliminary hearing. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Necessity of Filing.

Where contract with United States providing for reduction in retail rates upon approval by the commission, was filed with the commission there was not sufficient compliance with the contract, since to obtain the lower rates the company was required to file a new rate schedule with the commission. United States v. Arkansas Power & Light Co., 165 F.2d 354 (8th Cir. 1948).

Notice.

The only discretion the commission has in connection with the giving of notice as to change in rates is to require the utility to give notice to one or more of the interested parties enumerated in § 23-3-119, it being important to bear in mind that the procedure under this section apparently envisions a full scale rate hearing which might involve months and the expenditure of thousands of dollars. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

23-4-403. Changes allowed without notice.

The Arkansas Public Service Commission, for good cause shown, may allow changes in rates without requiring the thirty (30) days' notice under such conditions as it may prescribe. All allowed changes shall be immediately indicated upon its schedules by the public utility.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-404. Proposed changes to be reflected in schedules.

All proposed changes shall be shown by filing new schedules or shall be plainly indicated upon schedules filed and in force at the time and kept open to public inspection.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-405. Investigation of proposed rates.

Whenever there is filed with the Arkansas Public Service Commission by any public utility a schedule stating a new rate, the commission, upon reasonable notice, may enter upon any investigation, either upon complaint or upon its own motion, concerning the lawfulness of the rate.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Commission's Authority.

It was the duty of the commission when utility company sought an increase in rates to determine whether the company was entitled to any increase in order to earn a fair return on its invested capital. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Judicial Review.

It is not the theory, but the impact, of the rate order that counts in determining whether rates are just, reasonable, lawful, and nondiscriminatory under this section; if the total effect of the rate order cannot be said to be unjust, unreasonable, unlawful, or discriminatory, judicial inquiry is concluded, and infirmities in the method employed are rendered unimportant. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

23-4-406. Test periods to justify new rates.

For the purpose of justifying the reasonableness of a proposed new rate schedule, a utility may utilize either a historical test period of twelve (12) consecutive calendar months or a forward-looking test period of twelve (12) consecutive calendar months consisting of six (6) months of actual historical data derived from the books and records of the utility and six (6) months of projected data which together shall be the period or test year upon which fair and reasonable rates shall be determined by the Arkansas Public Service Commission. However, the commission shall also permit adjustments to any test year so utilized to reflect the effects on an annualized basis of any and all changes in circumstances which may occur within twelve (12) months after the end of the test year where such changes are both reasonably known and measurable.

History. Acts 1981 (1st Ex. Sess.), No. 30, § 4; A.S.A. 1947, § 73-217.5.

Case Notes

Adjustments to Test Year.

This section does not require the Arkansas Public Service Commission to make adjustments to any test year, but only requires that the utility be permitted to adjust its test period data to reflect reasonably known and measurable changes which may occur within 12 months of the end of the test year. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986); Associated Natural Gas Co. v. Arkansas Pub. Serv. Comm'n, 25 Ark. App. 115, 752 S.W.2d 766 (1988).

Any proposed adjustment stands alone when measured by the “known and measurable” standard of this section. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986).

The Arkansas Public Service Commission correctly included the revenues and expenses associated with Yellow Page operations of a related company for both the test year and the pro forma year in determining the telephone company's revenue requirement, where the commission found that the adjustment was based on reliable data supplied by telephone company and it was reasonably known and measurable within the guidelines of this section. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986).

The Arkansas Public Service Commission's finding that the telephone company's evidence on demand repression adjustments did not meet the reasonably known and measurable standard of this section was not arbitrary and capricious, was supported by substantial evidence, and was therefore affirmed. Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 18 Ark. App. 260, 715 S.W.2d 451 (1986).

Cost-Saving Projects.

Giving effect to certain cost-saving projects by the Arkansas Public Service Commission in evaluating a rate increase request was not improper where the savings projects would be implemented during the pro forma year. General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392, aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988).

Discretion of Commission.

The test year to be used in setting utility rates is a matter lying within the discretion of the Arkansas Public Service Commission, although the commission should consider complete and accurate information with respect to a later period of time, when available, as a check on the continuing validity of the test year experience in a period of rapid change. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980) (decision prior to enactment of this section).

Commission did not abuse its powers where “changes in circumstances” were “reasonably known and measureable” and they occurred during 12 months after the test year. General Tel. Co. of Southwest v. Arkansas Pub. Serv. Comm'n, 295 Ark. 595, 751 S.W.2d 1 (1988).

Reliability of Data.

General disclaimer included in report did not prevent report's analysis of data from meeting the required level of certainty. Bryant v. Arkansas Pub. Serv. Comm'n, 50 Ark. App. 213, 907 S.W.2d 140 (1995).

Test Components.

Matters not completely within the control of a company may still be measured; analytical studies, historical data, and expert projections often must provide the basis for certain components of ratemaking. Bryant v. Arkansas Pub. Serv. Comm'n, 50 Ark. App. 213, 907 S.W.2d 140 (1995).

23-4-407. Suspension of proposed rates.

  1. Pending its investigation and the decision thereon, the Arkansas Public Service Commission may suspend the operation of the rate by written order at any time before the new rate becomes effective. However, the suspension shall not be for a longer period than nine (9) months beyond the time when the rate would otherwise go into effect. Any order initially suspending the rate shall set a specific date for the commencement of a hearing inquiring into the rate requested unless waived by the applicant utility.
    1. Provided, however, that the commission may suspend, for a time certain, the operation of the rate or rates for a longer period than nine (9) months beyond the time when such rate or rates would otherwise go into effect if the public utility which filed the rate or rates files a waiver in writing with the commission before the expiration of the previously ordered suspension period consenting to such an additional suspension. The commission may not suspend a rate or rates for any additional period greater than that consented to by the public utility.
    2. The provisions of this subsection shall not apply to any telephone company or telephone cooperative which has fewer than ten thousand (10,000) access lines.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 1991, No. 1090, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Purpose.

Because the investigation and consideration of rate applications can become such a complex and time consuming procedure, the General Assembly has given the commission the authority to suspend the collection of proposed rate increases for up to a specified period, during the time the commission is deliberating on the application, a provision obviously designed to protect the public from the collection of rate increases which the commission later determines to be unwarranted. Arkansas Pub. Serv. Comm'n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979).

Expiration.

Where the Arkansas Public Service Commission has suspended the operation of proposed new utility rates for six months as allowed by this section, the proposed rates will become effective at the expiration of the suspension period unless or until the commission issues an order providing otherwise. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Refund of Collections.

Where the Arkansas Public Service Commission could only suspend the operation of proposed new telephone rates for a period not to exceed six months, the commission had no authority to order a refund of revenues collected on the basis of the telephone company's proposed rates between the date of the expiration of the suspension order and the date of the commission order fixing the rates allowed; on the other hand, a refund of the collections made by the telephone company, between the date the company's proposed tariffs were made effective under an “agreement and undertaking” approved by the commission and the date that the suspension period expired, could be ordered even though no valid rate order was entered by the commission within the time limitation on the power of suspension. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

23-4-408. Interim implementation of suspended rates.

  1. If the public utility contends that an immediate and impelling necessity exists for the requested rate increase, a petition may be filed with the Arkansas Public Service Commission narrating the alleged circumstances and requesting a hearing on the petition.
  2. The hearing must commence within thirty (30) days from the date of the filing of the petition or at such subsequent time as may be mutually agreeable to the commission and the utility.
  3. If the commission finds at the hearing that there is substantial merit to the allegation of the utility's claims, the commission may permit all or a portion of the rate to become effective if there is filed with the commission a bond to be approved by it, payable to the State of Arkansas in such amount and with such sufficient security to insure the prompt payment of any damages or refunds, with interest, to the persons entitled thereto if the rate so put into effect is finally determined to be excessive or if there is substituted for the bond other arrangements satisfactory to the commission for the protection of the parties interested.
  4. The findings of the commission relative to the petition of the utility for the immediate and impelling necessity for relief shall be issued on or before the sixtieth day following the date of filing of the petition.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; 1985, No. 523, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Agreement and Undertaking.

When the telephone company's agreement and undertaking, which was approved by the Arkansas Public Service Commission and made the company's proposed tariff effective, was read in the light of §§ 23-4-40223-4-418, it did not require any refund that the commission could not order under this section; in other words, the agreement could not bind the telephone company to do more than the commission could require under §§ 23-4-40223-4-418, and the agreement could not have the effect of increasing the commission's power or the telephone company's obligation. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Bond.

The terms of §§ 23-4-40223-4-418 are considered as if they were written into any bond filed under this section, and, in determining extent of liability on the bond, the language of this section is controlling over the language of the bond. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Commission's Authority.

Inclusion of requests both for rate increase and escalator clauses in one schedule upon petition of gas company for increase in consumption rate was not fatal to the power of the commission to allow the rate increase to go into effect under bond where it at the same time recited that the proposed escalator clauses were not to go into effect until further order of the commission. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Contest of Rate Increase.

Where the customers and ratepayers had been allowed to intervene in the rate increase proceedings before the Arkansas Public Service Commission, they had a full and adequate opportunity to contest the proposed rate increase and its statutory basis; and, therefore, the circuit court had no jurisdiction over a subsequent class action suit brought by the customers of the utility, in which they alleged that part of this section was unconstitutional in that it allows a utility to collect a requested rate increase under bond. Oklahoma Gas & Elec. Co. v. Lankford, 278 Ark. 595, 648 S.W.2d 65 (1983).

Rights of Utility.

Upon petition for rate increase by gas company, the company had the right when it filed its schedule to ask that its monthly consumption rate go into effect under bond and that proposed escalator clauses be considered on final hearing under § 23-4-108. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Cited: City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Bryant v. Arkansas Pub. Serv. Comm'n, 57 Ark. App. 73, 941 S.W.2d 452 (1997).

23-4-409. Rate increase not effective until final order.

Unless the Arkansas Public Service Commission finds an immediate and impelling necessity exists as provided in § 23-4-408, or fails to enter a timely order as provided in § 23-4-411, no public utility shall place any rate increase into effect until a final decision and order is made by the commission.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; 1985, No. 523, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Effective Date.

Where order for increased rate went into effect on specified date, fact that telephone company billed creditors one month in advance did not prevent rates from going into effect on specified date. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-410. Authority of commission to fix rates — Apportionment of increase.

  1. If after the investigation and hearing thereon the Arkansas Public Service Commission finds the new rate to be unjust, unreasonable, discriminatory, or otherwise in violation of the law or rules of the commission, it shall determine and fix the just and reasonable rate to be charged or applied by the utility for the service in question, from and after the time the new rate took effect.
  2. Until rate schedules in compliance with the commission's order can be filed and approved, any rate increase allowed in the commission's order shall be apportioned among all classes of customers and shall become effective on all bills rendered thereafter through a temporary surcharge or other equitable means, as shall be prescribed in the order.
  3. The public utility or any party to a proceeding before the commission to consider an application for a general change in rates and charges may, according to the commission's rules and procedures, present evidence regarding a requested return on common equity in a filing, including without limitation:
    1. The basis for the requested return on common equity, including quantitative analysis based on widely accepted methodologies, current market data, qualitative discussion, and analysis of factors that influence the requested return on common equity;
    2. Evidence that the requested return on common equity is comparable to values that have recently been approved for public utilities that are delivering similar services with corresponding risks within this state and in other similar regulatory jurisdictions in the same general part of the country;
    3. Evidence of the financial, business, and other risks faced by the utility, including regulatory oversight, numbers and types of customers, rate mechanisms, cost allocation methods, rate levels, rate design, reliability, and quality of service, as compared to those faced by utilities delivering similar services within this state and in other similar regulatory jurisdictions in the same general part of the country; and
    4. Any other information, including without limitation:
      1. Macroeconomic data;
      2. Relevant commentary from ratings agencies and investment analysts;
      3. Independent analysis of utility industry trends;
      4. Customer impact; and
      5. Any other relevant information.
  4. If any evidence is presented as described in subsection (c) of this section, the commission shall discuss that evidence and demonstrate in its order that it considered the evidence in making its findings. The commission shall make its findings based on substantial evidence.
  5. The allowance for funds used during construction that will be accrued and capitalized and included as a component of the costs recoverable through rates approved by the commission shall be determined according to the requirements of the uniform system of accounts adopted by the commission in its rules. The rate of return on common equity to be used shall be the rate of return on common equity most recently approved by the commission for the utility.
  6. An electric cooperative corporation established under the Electric Cooperative Corporation Act, § 23-18-301 et seq., is not subject to subsections (c) and (d) of this section.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2015, No. 725, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Amendments. The 2015 amendment added (c) through (f).

Case Notes

Purpose.

The General Assembly contemplated that the investigation and hearing by the Arkansas Public Service Commission pursuant to this section should be completed and an order for a refund made during the six-month suspension period. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Appeals.

Consumer which did not appeal decision of the Arkansas Public Service Commission granting a rate change within the required time could not collaterally attack the rate schedule as discriminatory in a circuit court action against the utility and the commission. Commercial Printing Co. v. Arkansas Power & Light Co., 250 Ark. 461, 466 S.W.2d 261 (1971).

Due Process.

There was nothing in the record to indicate a denial of due process in action of commission in establishing a rate yielding a certain return to utility company upon application of company for increase in rates. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Effective Date.

Arkansas Public Service Commission's determination that a decrease in an electric utility's rates, as established in the Commission's ratemaking order, would be effective for all bills rendered after June 15, 2007, which was the date the Commission issued the ratemaking order, was affirmed. Although the utility argued that it could face certain logistical difficulties in immediate implementation of the decrease, these difficulties could be met by utilizing appropriate debits or credits to customer bills. Entergy Ark., Inc. v. Ark. Pub. Serv. Comm'n, 104 Ark. App. 147, 289 S.W.3d 513 (2008).

Establishment of Rates.

The commission is not bound by any formula or combination of formulas in fixing rates. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Where utility company in its rate application chose the testing period for use in determining rates and the commission accepted the company's choice, the company could not question the use of such testing period. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

It was the duty of the commission when utility company sought an increase in rates to determine whether the company was entitled to any increase in order to earn a fair return on its invested capital. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Upon application of utility company for increase in rates refusal of commission to allow the average amount of work under construction during testing period to be included in rate base was not improper. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Upon application of utility company for change in rates, commission was not bound by previous order and could make changes in such order upon proper notice to the company so long as it did not invade the constitutional rights of the company. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

The test year to be used in setting utility rates is a matter lying within the discretion of the Arkansas Public Service Commission, although the commission should consider complete and accurate information with respect to a later period of time, when available, as a check on the continuing validity of the test year experience in a period of rapid change. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980) (decision prior to enactment of this section).

A test year used by the commission did not abuse its discretion. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Judicial Review.

It is the result reached, not the method employed, that is controlling, and it is not the theory but the impact of the rate order that counts in determining whether utility rates are just, reasonable, lawful and nondiscriminatory under this section; if the total effect of the rate order cannot be said to be unjust, unreasonable, unlawful or discriminatory, judicial inquiry is concluded, and infirmities in the method employed rendered unimportant. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Notice to Utility.

The court interpreted the language of § 23-4-108 to mean that once the commission fixes a definite rate, it cannot lower the rate without giving notice to the utility and cannot raise the rate without notifying in some way the ratepayers. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-411. Failure of commission to reach timely decision — Conditional implementation of suspended rates.

In the event no final rate determination has been made upon the schedule for new rates within ten (10) months after the date the schedule for new rates was filed with the Arkansas Public Service Commission, the public utility may put the suspended rate into effect for all bills rendered thereafter immediately upon the filing of a bond to be approved by the commission payable to the State of Arkansas in such amount and with sufficient security to insure prompt payment of any refunds to the persons entitled thereto, including an interest rate as determined by the commission not to exceed the maximum interest otherwise allowed by law, if the rate or rates so put into effect are finally determined to be excessive. There may be substituted for the bond other arrangements satisfactory to the commission for the protection of the parties interested.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Implementation of Suspended Rates.

Where the Arkansas Public Service Commission has suspended the operation of proposed new utility rates, the proposed rates will become effective at the expiration of the suspension period unless or until the commission issues an order providing otherwise. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Jurisdiction of Contests.

Where the customers and ratepayers of the defendant utility company had been allowed to intervene in the rate increase proceedings before the Arkansas Public Service Commission, they had a full and adequate opportunity to contest the proposed rate increase and its statutory basis; and, therefore, the circuit court had no jurisdiction over a subsequent class action suit brought by the customers of the utility. Oklahoma Gas & Elec. Co. v. Lankford, 278 Ark. 595, 648 S.W.2d 65 (1983).

Refunds.

The Arkansas Public Service Commission had the power and the authority to order the refund of any rates collected during the suspension period which it ultimately found to be excessive, in spite of the time limitations in this section. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Where the Arkansas Public Service Commission could only suspend the operation of proposed new telephone rates for the statutory period, the commission had no authority to order a refund of revenues collected on the basis of the telephone company's proposed rates between the date of the expiration of the suspension order and the date of the commission order fixing the rates allowed; on the other hand, a refund of the collections made by the telephone company, between the date the company's proposed tariffs were made effective under an “agreement and undertaking” approved by the commission and the date that the period expired, could be ordered even though no valid rate order was entered by the commission within the time limitation on the power of suspension. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

When the telephone company's agreement and undertaking, which was approved by the Arkansas Public Service Commission and made the company's proposed tariff effective, was read in the light of §§ 23-4-40223-4-418, it did not require any refund that the commission could not order under this section; in other words, the agreement could not bind the telephone company to do more than the commission could require under §§ 23-4-40223-4-418, and the agreement could not have the effect of increasing the commission's power or the telephone company's obligation. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Time Limitation.

Time limitation provisions of this section may not be waived or disregarded by any party or by the Public Service Commission itself. General Tel. Co. v. Arkansas Pub. Serv. Comm'n, 23 Ark. App. 73, 744 S.W.2d 392, aff'd, 295 Ark. 595, 751 S.W.2d 1 (1988).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-412. Issuance of commission order — Rates to be collected.

Notwithstanding any other provisions of this act, upon issuance of the findings and order of the Arkansas Public Service Commission as prescribed in § 23-2-421, no public utility subject to the order shall continue to collect any rates theretofore permitted to be collected under bond. The public utility shall be permitted to collect only those rates set in the order of the commission, and those rates shall be effective throughout any rehearing and judicial review proceedings permitted and prescribed in §§ 23-2-42223-2-424.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Meaning of “this act”. See note to § 23-4-402.

Case Notes

Effective Date of Rates.

Where order for increased rate went into effect on specified date, fact that telephone company billed creditors one month in advance did not prevent rates from going into effect on specified date. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-413. Surcharge to collect rates increased by courts.

  1. In the event that the rates set in the order of the Arkansas Public Service Commission subsequently are determined to have been inadequate, either on rehearing or in accordance with court decision on judicial review, the public utility subject to the order shall be entitled to impose a surcharge on the affected customers for collection of the increased rates that otherwise would have been collected during the period between the effective date of the initial order and the effective date of the rates as increased, together with interest as determined by the commission at a rate not to exceed the maximum interest rate otherwise allowed by law.
  2. This surcharge shall be assessed over a period equal to the period between the date of the initial order and the effective date of the rates, as increased.
  3. The surcharge shall be distributed among the affected customers in proportion to the amounts those customers were charged during the period between the date of the initial order and the effective date of the rates, as increased.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-414. Refunds of excessive rate collections under bond.

In the event a public utility has implemented under bond or other arrangements as a matter involving an immediate and impelling necessity pursuant to § 23-4-408 an amount which exceeds that allowed by the Arkansas Public Service Commission in its final order, the commission shall order the immediate refund of the excessive bonded collections.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Agreement and Undertaking.

When the telephone company's agreement and undertaking, which was approved by the Arkansas Public Service Commission and made the company's proposed tariff effective, was read in the light of §§ 23-4-40223-4-418, it did not require any refund that the commission could not order under this section; in other words, the agreement could not bind the telephone company to do more than the commission could require under §§ 23-4-40223-4-418, and the agreement could not have the effect of increasing the commission's power or the telephone company's obligation. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Commission's Authority.

The Arkansas Public Service Commission had the power and authority to order the refund of any rates collected during the suspension period which it ultimately found to be excessive, in spite of the time limitations in this section. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Where the Arkansas Public Service Commission could only suspend the operation of proposed new telephone rates for the statutory period, the commission had no authority to order a refund of revenues collected on the basis of the telephone company's proposed rates between the date of the expiration of the suspension order and the date of the commission order fixing the rates allowed; on the other hand, a refund of the collections made by the telephone company, between the date the company's proposed tariffs were made effective under an “agreement and undertaking” approved by the commission and the date that the period expired, could be ordered even though no valid rate order was entered by the commission within the time limitation on the power of suspension. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-415. Refunds of excessive bonded collections — Order not stayed during rehearing.

An application for rehearing pursuant to § 23-2-422 filed by a party aggrieved by the final order of the Arkansas Public Service Commission shall not stay the effectiveness of the order as it pertains to refunds of excessive bonded collections.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-416. Surcharge to collect excessive refunds.

In the event that the amount of refunds ordered by the Arkansas Public Service Commission in its final order is subsequently determined to have been excessive, either on rehearing or in accordance with a court decision on judicial review, the public utility subject to the order shall be entitled to impose an additional surcharge on the affected customers to recover that portion of the refunds to which it was entitled, together with interest as determined by the commission at a rate not to exceed the maximum interest rate otherwise allowed by law. The surcharge shall be assessed over a period equal to the period between the date the rates were implemented under bond and the date of the commission's final order. The surcharge shall be distributed among the affected customers in proportion to the amount of refunds those customers received.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-417. Petition for mandamus.

If the Arkansas Public Service Commission's order is not issued before the expiration of the period of suspension, the filed rates shall remain subject to refund as provided in § 23-4-414, but the applicant utility shall have the right to petition the Pulaski County Circuit Court for a writ of mandamus compelling the issuance of an order by the commission within fifteen (15) days of the writ of mandamus issued by the Pulaski County Circuit Court. The petition shall be advanced on the docket above all other pending civil cases and a hearing thereon shall be held within seven (7) days of the filing of the petition. The scope of review shall be limited to the issue of the failure of the commission to act within the time limits provided for in this act.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Meaning of “this act”. See note to § 23-4-620.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-418. Suit to compel refunds — Proceeds.

  1. If the public utility fails to make refunds within thirty (30) days after the effective date of the order requiring such refunds, the Arkansas Public Service Commission shall bring suit in the name of the State of Arkansas for the use and benefit of all those entitled to a refund in any court of competent jurisdiction and shall recover the amount of all refunds due, together with interest thereon at a rate not to exceed the maximum rate otherwise allowed by law, and all court costs.
  2. No suit to recover the refunds shall be maintained unless instituted within two (2) years after the final determination.
  3. The amount recovered shall be paid to the clerk of the court where the suit was pending, and it shall be the clerk's duty to distribute the amount recovered to the persons entitled thereto as directed by the order of judgment of the court.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

23-4-419. Applications for additional increases.

  1. No public utility which has filed an application with the Arkansas Public Service Commission for a general increase in the utility rates charged by the utility shall be permitted by the commission to file an additional application for a general rate increase until thirty (30) days after the occurrence of whichever of the following events first occurs:
    1. The commission makes a final rate determination as required by § 23-4-409 in the last previous general rate application then under consideration by the commission; or
    2. The ten-month period following the filing of the utility's previous general rate application expires and no final rate determination has been made with respect to the utility's previous general rate application within the ten-month period.
  2. However, an application for a change in rates filed pursuant to § 23-4-501 et seq. shall not be considered a general rate increase for the purposes of this section.
  3. It is the intent and purpose of this section to expedite the orderly and speedy determination by the commission of public utility rate filing applications and to enable the commission to devote sufficient staff time and commission effort in regard thereto without being overburdened by additional rate filings by the same public utility until the rate application then under consideration has been considered and a final decision and order entered by the commission.

History. Acts 1981 (1st Ex. Sess.), No. 24, §§ 1, 2; 1985, No. 339, § 1; A.S.A. 1947, §§ 73-217.7, 73-217.8.

23-4-420. Reports on status of applications.

  1. Quarterly, the Arkansas Public Service Commission shall appear before the Legislative Council, file a written report, and make such oral reports as the Legislative Council may request concerning the status of all utility rate applications pending before the commission, including:
    1. An identification of the cases filed;
    2. The status of staff progress, if any;
    3. The schedule of hearings and deadlines established for disposition of each case;
    4. The date on which hearings have been held or are scheduled to be held; and
    5. The projected date of completion of hearings and issuance of a final order in connection with each case.
  2. In the event the commission has failed to conclude a hearing and issue an order on a particular rate application within the deadlines established by law, the commission shall file with the Legislative Council a detailed statement of the reasons for the delay or failure to complete the hearing and ruling thereon within the deadline set by law, and shall advise the Legislative Council of any impact or effect thereof upon the ratepayers of the utility.
  3. The Legislative Council shall schedule an appropriate date and shall give notice thereof to the commission of the date on which the commission is to appear before the Legislative Council to make its quarterly report, as requested in this section.

History. Acts 1981 (1st Ex. Sess.), No. 30, § 5; A.S.A. 1947, § 73-217.6.

23-4-421. No changes allowed in terms of employment subject to collective bargaining agreement.

In establishing public utility rates, the Arkansas Public Service Commission shall not reduce or otherwise change any wage rate, benefit, working condition, or other term or condition of employment that is the subject of a collective bargaining agreement between the public utility and a labor organization.

History. Acts 1991, No. 578, § 2.

Publisher's Notes. Acts 1991, No. 578, § 1, provided:

“The General Assembly hereby finds and declares that the people of Arkansas have benefited greatly from stable and responsible labor relations in the public utility industry, and that strengthening the institution of collective bargaining between public utilities and labor organizations for wages, hours, benefits, and other terms and conditions of employment in order to preserve stability and responsibility is in the public interest. The General Assembly further finds and declares that the well-being of employees of public utilities, who are residents, citizens, taxpayers, and consumers in Arkansas, is an essential element to balance with investor and consumer interest in arriving at the public interest in setting rates for public utilities.”

23-4-422. Cost allocation — Definition.

    1. The Arkansas Public Service Commission shall establish and regulate the rates and charges of a public utility under this subchapter and shall allocate or assign costs among all classes of customers of the public utility.
    2. In determining the rates for utility services and the cost allocation among all of a public utility's classes of customers, the commission shall:
      1. Consider the costs and expenses incurred by the public utility in providing the utility services to customers in each class;
      2. Consider the economic impact of the proposed rates and charges for utility services by giving equal consideration to each class of customers; and
      3. Make findings that are based on substantial evidence.
  1. Notwithstanding the commission's authority to otherwise determine and fix rates for all classes of customers, including allocating or assigning costs and designing rates, if the commission finds that it will be beneficial to economic development or the promotion of employment opportunities, and that it will result in just and reasonable rates for all classes of customers, the commission shall determine rates and charges for utility services that:
    1. For the class of customers with the highest level of consumption per customer which has rates that include a demand component, and any successors to such class, as they existed on January 1, 2015, ensure that all costs and expenses related to demand and capacity are identified and allocated on a demand basis and recovered from customers in those classes through a demand rate component and not through a volumetric rate component unless the commission determines that the rates should be adjusted under subsections (e) and (f) of this section;
    2. For the retail jurisdiction rate classes, ensure that:
      1. All electric utility production plant, production-related costs, nonfuel production-related costs, purchased capacity costs, and any energy costs incurred resulting from the electric utility's environmental compliance are classified as production demand costs; and
        1. Production demand costs are allocated to each customer class pursuant to the average and excess method shown in Table 4-10B on page 51 of the 1992 National Association of Regulatory Utility Commissioners Electric Utility Cost Allocation Manual, as it existed on January 1, 2015, using the average of the four (4) monthly coincident peaks for the months of June, July, August, and September for each class for the coincident peak referenced in Table 4-10B of the manual, as it existed on January 1, 2015, or any subsequent version of the manual to the extent it produces an equivalent result.
        2. Subdivision (b)(2)(B)(i) of this section does not prescribe an allocation for a wind production plant; and
        1. For purposes of allocation of natural gas distribution plant costs, including costs in distribution mains and related distribution plant expenses, among the state's retail jurisdiction rate classes, ensure that each natural gas public utility classifies all natural gas distribution plant costs as customer-related or capacity-related.
        2. For purposes of subdivision (b)(3)(A)(i) of this section, the natural gas distribution plant costs shall include:
          1. Amounts charged to account numbers 374 through 387, as defined under the account numbering system in the Uniform System of Accounts prescribed for natural gas public utilities by the rules of the commission; and
          2. Related depreciation, return on investment, property insurance and taxes, excluding state and federal income taxes, and fixed operation and maintenance expense charged to account numbers 870 through 894, as defined under the account numbering system in the Uniform System of Accounts prescribed for natural gas public utilities by the rules of the commission, including all labor-related costs for the expenses described in this subdivision (b)(3)(A).
        3. To develop a cost allocation method under this section for natural gas utilities, the commission shall use the Gas Distribution Rate Design Manual, June 1989 edition, as prepared by the National Association of Regulatory Utility Commissioners, as it existed on January 1, 2015, or any subsequent version of the manual, to the extent it produces an equivalent result.
        1. The customer-related natural gas distribution plant costs shall be allocated to each customer class based on the number of customers in each class.
        2. The customer-related portion of natural gas distribution plant costs related to account numbers 374 through 376, as defined under the account numbering system in the Uniform System of Accounts prescribed for natural gas public utilities by the rules of the commission, shall be the percentage of the average cost of all mains that is represented by the average cost of the minimum size main and computed using a cost allocation method based upon the predominant size main that is installed by the natural gas public utility that is at least two inches (2") in diameter, with the investment costs of the predominant size mains set as the minimum size.
        3. The customer-related portion of natural gas distribution costs related to account numbers 377 through 387, as defined under the account numbering system in the Uniform System of Accounts prescribed for natural gas public utilities by the rules of the commission, shall be computed using a study that reflects the investments required to meter, regulate, and connect each class of customers to the natural gas utility's system.
        4. Any remaining natural gas distribution plant costs shall be classified as capacity-related costs.
        1. Except for natural gas distribution plant costs related to account numbers 380 through 385, as defined under the account numbering system in the Uniform System of Accounts prescribed for natural gas public utilities by the rules of the commission, the natural gas distribution plant costs classified as capacity-related costs shall be allocated to the customer classes based on the contribution to peak day demand that is made by each customer class.
        2. As used in subdivision (b)(3)(C)(i) of this section, “peak day demand” means the computed quantity of gas that would be supplied to each customer class calculated using the coldest day in a recent thirty-year period for each gas utility.
  2. In an application for a general change or modification in a public utility's rates and charges under this subchapter:
    1. A public utility may present evidence that demonstrates that the implementation of rates under subsection (b) of this section will result in rates that will be beneficial to economic development or the promotion of employment opportunities and result in just and reasonable rates for all classes of customers; and
    2. A public utility shall present evidence of whether or not rate design in subdivision (b)(1) of this section results in an increase to the base rate charges that are billed to customers in the affected class of more than ten percent (10%) as compared to the then currently approved base rate charges of the applicable rate schedules.
  3. Unless the commission adjusts the rates under subsection (e) or subsection (f) of this section, the commission shall by order establish and design rates, allocate or assign costs to all classes of customers, and regulate the rates for each class of customers of a public utility according to this section.
  4. Pursuant to the commission's authority to otherwise determine and fix rates for all classes of customers, including allocating or assigning costs and designing rates, the commission may adjust rates under subdivisions (b)(2) and (3) of this section if the commission finds:
    1. It is in the public interest;
    2. It is necessary to produce just and reasonable rates; or
    3. Implementation of rates under subdivisions (b)(2) and (3) of this section will result in rates that are not beneficial to economic development or the promotion of employment opportunities.
  5. If implementation of rates under subdivision (b)(1) of this section will result in an increase in the base rate charges billed to customers in the affected class of more than ten percent (10%) as compared to the currently approved base rate charges of the applicable rate schedules, the commission may adjust the rates to ensure that the greatest increase in the base rate charges billed to customers in the affected class is ten percent (10%) as compared to the then currently approved base rate charges of the applicable rate schedules.
  6. If the commission makes any adjustment under subsections (e) and (f) of this section, the commission shall provide in an order the rationale for determining that rates under subsection (b) of this section may not be just and reasonable and the rationale for determining that the rates adjusted in the order of the commission are just and reasonable and in the public interest. The commission shall make its findings based on substantial evidence.
  7. An electric cooperative corporation established under the Electric Cooperative Corporation Act, § 23-18-301 et seq., is not subject to this section.
  8. Effective March 27, 2015, the cost allocation provisions of this section shall apply to any pending application for a change in general rates and charges.

History. Acts 2015, No. 725, § 2; 2017, No. 334, § 3.

Amendments. The 2017 amendment redesignated part of (b)(2)(A) as the introductory language of (b)(2); in (b)(2)(A), deleted “all” preceding “nonfuel” and added “and” at the end; redesignated former (b)(2)(B) and (b)(2)(C) as (b)(2)(B)(i) and (b)(2)(B)(ii); in (b)(2)(B)(i), substituted “Production” for “Ensure that production” and inserted “Electric Utility Cost Allocation”; and substituted “(b)(2)(B)(i)” for “(b)(2)(B)” in (b)(2)(B)(ii).

Subchapter 5 — Utilities — Special Surcharges

Effective Dates. Acts 1981, No. 310, § 6: Mar. 4, 1981. Emergency clause provided: “Existing statutes of this State do not provide for a procedure to permit immediate recovery of additional expenditures with respect to existing utility facilities incurred by public utilities as a result of legislative or regulatory requirements without the filing of a general rate case with the Public Service Commission. These circumstances result in a gross inequity in that utilities must make expenditures to provide facilities which are clearly in the public interest which costs cannot be recovered in a prompt and timely manner by the utility. Therefore, an emergency is declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in effect from and after its passage and approval.”

Acts 2015, No. 1000, § 8: Apr. 2, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that a recent decision of the Arkansas Court of Appeals has interpreted Act 310 of 1981 in a manner that is inconsistent with the interpretation of the Arkansas Public Service Commission; that this inconsistency impairs public utilities in their recovery, through an interim rate surcharge, of all investments and expenses that are not already included in the public utilities' currently effective rates and that were reasonably incurred by the public utilities as a direct result of legislative or administrative rules, regulations, or requirements relating to the protection of the public health, safety, or the environment; and that this act is immediately necessary to facilitate the timely recovery of investments and expenses so that public utilities may provide services to consumers in this state in a timely, efficient, and cost-effective manner. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Case Notes

Asbestos Removal.

This subchapter provides for the recovery of the costs associated with the removal of asbestos where federal regulation 40 C.F.R. § 61.147 requires removal of asbestos material, and also provides for the recovery of the costs of removal that relate to the protection of public health, safety, and the environment pursuant to § 23-4-502. Arkansas Oklahoma Gas Corp. v. Arkansas Pub. Serv. Comm'n, 301 Ark. 259, 783 S.W.2d 350 (1990).

23-4-501. Authority to recover costs through interim rate schedule.

    1. Upon a proper filing with the Arkansas Public Service Commission, a public utility shall be permitted to recover in a prompt and timely manner all investments and expenses through an interim surcharge, if the investments or expenses:
      1. Are not currently being recovered in existing rates;
      2. Are reasonably incurred;
      3. Were not reasonably known and measurable at a time that allowed for a reasonable opportunity for the inclusion and consideration of the investments or expenses for recovery in the public utility's last general rate case;
      4. Are incurred by the public utility to comply with legislative or administrative rules or requirements;
      5. Relate to the protection of the public health, safety, or the environment;
      6. Cannot otherwise be recovered in a prompt and timely manner; and
      7. Are any of the following:
        1. Mandatory;
        2. A condition of continued operation of a utility facility; or
        3. Previously approved by the commission.
    2. The interim surcharge shall be effective until the implementation of new rate schedules in connection with the next general rate filing of the public utility in which such investments or expenses can be included in the public utility's base rate schedule.
    3. However, the costs to be recovered through such an interim surcharge described in subdivisions (a)(1) and (2) of this section shall not include increases in the cost for employment compensation or benefits as a result of legislative or regulatory action.
    1. A public utility shall be permitted to recover, through an interim surcharge, the allowance for funds used during construction that would otherwise be accrued and capitalized that is incurred during the construction of facilities and equipment required for compliance with such legislative or administrative rules or requirements, provided that any such allowance for funds used during construction has not been capitalized or otherwise included in the utility's currently effective rates.
    2. The public utility shall not capitalize or otherwise recover through rates any allowance for funds used during construction incurred in connection with investments described in subdivision (b)(1) of this section when the associated financing costs are included in an interim surcharge.

History. Acts 1981, No. 310, § 1; A.S.A. 1947, § 73-217.1; Acts 2015, No. 1000, § 2; 2019, No. 315, §§ 2393, 2394.

Amendments. The 2015 amendment substituted “Authority to recover costs through interim rate schedule” for “Legislative findings and intent” in the section heading; and rewrote the section.

The 2019 amendment deleted “regulations” following “rules” in (a)(1)(D) and (b)(1).

Case Notes

Construction.

This section speaks in terms of “additional expenses with respect to existing facilities” and recovery through an interim surcharge of “such costs,” and the court did not read the statute so broadly as to give the Arkansas Public Service Commission carte blanche authority to adopt and implement any public health or safety program of its choosing and assess the ratepayers for the cost (decided under former version of statute). Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Factors.

Arkansas Public Service Commission erred in finding that a temporary surcharge implemented by a utility company complied with Acts 1981, No. 310; when an opposing party seeks disapproval of a surcharge based on any of the statutory factors in this section, the commission must make a finding as to such factors. McDaniel v. Arkansas Pub. Serv. Comm'n, 2014 Ark. App. 529, 444 S.W.3d 380 (2014).

Low-Income Assistance Programs.

Surcharge statutes tie surcharges to existing facility costs and costs directly related to legislative or regulatory requirements, and there is no authority granted to the Arkansas Public Service Commission for the implementation of social programs; moreover; the same holds true of sliding-scale ratemaking where the statutory language of § 23-4-108 and Arkansas case law refer to costs associated with gas production and service to the ratepayers, not low-income assistance programs. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

Cited: Arkansas Oklahoma Gas Corp. v. Arkansas Pub. Serv. Comm'n, 301 Ark. 259, 783 S.W.2d 350 (1990).

23-4-502. Filing interim rate schedule.

A public utility as defined in § 23-1-101 may recover all investments and expenses described in § 23-4-501 by filing with the Arkansas Public Service Commission, no more frequently than one (1) time every six (6) months, an interim rate schedule that would impose a separate surcharge in addition to its currently effective rates until the implementation of new rate schedules in connection with the next general rate filing of the public utility in which such investments and expenses can be included in the public utility's base rate schedules.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2; Acts 2015, No. 1000, § 3.

Amendments. The 2015 amendment substituted “all investments and expenses described in § 23-4-501” for “all costs and expenses reasonably incurred by such a utility as a direct result of legislative or regulatory requirements relating to the protection of the public health, safety, and the environment”; substituted “investments and expenses” for “additional expenditures”; and inserted “public” preceding “utility” and “utility's” near the end of the section.

Case Notes

Asbestos Removal.

This subchapter provides for the recovery of the costs associated with the removal of asbestos where federal regulation 40 C.F.R. § 61.147 requires removal of asbestos material, and also provides for the recovery of the costs of removal that relate to the protection of public health, safety, and the environment pursuant to this section. Arkansas Oklahoma Gas Corp. v. Arkansas Pub. Serv. Comm'n, 301 Ark. 259, 783 S.W.2d 350 (1990).

Low-Income Assistance Programs.

Surcharge statutes tie surcharges to existing facility costs and costs directly related to legislative or regulatory requirements, and there is no authority granted to the Arkansas Public Service Commission for the implementation of social programs; moreover; the same holds true of sliding-scale ratemaking where the statutory language of § 23-4-108 and Arkansas case law refer to costs associated with gas production and service to the ratepayers, not low-income assistance programs. Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n, 354 Ark. 37, 118 S.W.3d 109 (2003).

23-4-503. Calculation of interim surcharge.

The amount of the interim surcharge to be added to the public utility's rates shall be calculated so as to produce annual revenues equal to the additional annualized revenue requirement to which the public utility would be entitled had the investments and expenses described in § 23-4-501 been included in the public utility's most recent rate determination by the Arkansas Public Service Commission.

History. Acts 1981, No. 310, § 3; A.S.A. 1947, § 73-217.3; Acts 2015, No. 1000, § 4.

Amendments. The 2015 amendment substituted “interim surcharge” for “amount of surcharge” in the section heading; inserted “interim” preceding “surcharge”; inserted “public” throughout the section; and substituted “investments and expenses described in § 23-4-501” for “additional expenditures”.

23-4-504. Surcharge effective upon filing.

The surcharge shall become effective immediately upon filing.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2.

23-4-505. Investigation by commission.

The Arkansas Public Service Commission shall enter upon an investigation concerning the reasonableness of the surcharge within thirty (30) days after filing and upon reasonable notice to the utility.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2.

23-4-506. Collection subject to refund.

The surcharge shall be collected subject to refund, and the Arkansas Public Service Commission may require reasonable security to assure the prompt payment of any refunds that may be ordered.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2.

23-4-507. Modification or disapproval of surcharge.

  1. After its investigation and hearing thereon, the Arkansas Public Service Commission may modify or disapprove all or any portion of the surcharge upon a finding that:
    1. The investments or expenses were not reasonably incurred to comply with legislative or administrative rules or requirements;
    2. The investments or expenses do not relate to the protection of the public health, safety, or the environment;
    3. The investments or expenses were not substantiated;
    4. The amount of the surcharge has been erroneously calculated;
    5. The investments or expenses are already being recovered in existing rates;
    6. The investments or expenses were reasonably known and measurable at a time that allowed for a reasonable opportunity for their inclusion and consideration for recovery in the public utility's last general rate case;
    7. The investments or expenses were not reasonably incurred;
    8. The investments or expenses can otherwise be recovered in a prompt and timely manner;
    9. The allocation of the surcharge among the customers of the public utility is unreasonable; or
    10. The investments or expenses were not:
      1. Mandatory;
      2. A condition of continued operation of a utility facility; or
      3. Previously approved by the commission.
    1. If the commission determines that the allocation of the surcharge among the customers of the utility should be modified, it shall fix and determine the appropriate allocation among the utility's customers which shall be applied prospectively.
    2. The commission shall further direct the utility to credit or charge, as the case may be, the affected classes of customers whose surcharges were determined to be improperly allocated for the period between the effective date of the surcharge and the effective date of the modification. As to those classes of customers entitled to credits, the utility also shall pay interest on those credits, as applicable.
  2. If the commission determines that all or any portion of the proposed surcharge should be disapproved under subsection (a) of this section, the commission shall determine the just and reasonable amount of the surcharge to be charged or applied by the public utility after the time the proposed surcharge took effect. In the same order, the commission shall fix the amounts, plus interest, if any, to be refunded to the utility's customers.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2; Acts 2015, No. 1000, §§ 5, 6; 2019, No. 315, § 2395.

Amendments. The 2015 amendment rewrote (a); and, in the first sentence of (c), substituted “under subsection (a)” for “pursuant to either subdivision (a)(1) or (2)”, inserted “public”, and deleted “from and” preceding “after the time”.

The 2019 amendment deleted “regulations” following “rules” in (a)(1).

23-4-508. Application for rehearing no stay of order.

An application for rehearing pursuant to § 23-2-422 filed by a party aggrieved by an order of the Arkansas Public Service Commission entered pursuant to this subchapter shall not stay the effectiveness of the order of the commission.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2.

23-4-509. Inadequate surcharges permitted by commission — Additional surcharges.

  1. In the event that the amount of the surcharge permitted by the order of the Arkansas Public Service Commission is subsequently determined to have been inadequate, either on rehearing or in accordance with a court decision on judicial review, the public utility subject to such an order shall be entitled to impose an additional surcharge on the affected customers to recover that portion of the surcharge which was not approved by the commission which should have been collected during the period between the effective date of the initial order and the final determination or rehearing or by the court on judicial review.
  2. The surcharge shall be assessed over a period equal to the period between the date of the initial order and the effective date of the final determination on rehearing or by the court on judicial review.
  3. The surcharge shall be distributed among the affected customers in proportion to the amounts those customers were charged during the period between the date of the initial order and the final determination on rehearing or by the court on judicial review.

History. Acts 1981, No. 310, § 2; 1983, No. 262, § 1; A.S.A. 1947, § 73-217.2.

Subchapter 6 — Railroads and Other Carriers Generally

Effective Dates. Acts 1868, No. 71, § 45: effective on passage.

Acts 1881, No. 42, § 4: effective on passage.

Acts 1885, No. 31, § 4: effective on passage.

Acts 1887, No. 81, § 14: effective on passage.

Acts 1887, No. 129, § 4: effective 30 days after passage.

Acts 1903, No. 130, § 6: effective on passage.

Acts 1907, No. 422, § 9: May 28, 1907.

Acts 1909, No. 71, § 4: effective 30 days after passage.

Acts 1919, No. 185, approved Mar. 6, 1919. Emergency declared.

Acts 1935, No. 324, § 71: approved Apr. 2, 1935. Emergency clause provided: “It is found that the statutes of this state for the regulation of public utilities are insufficient, inadequate, and do not afford to the public, or the public utilities, of the state, speedy and adequate relief from excessive or insufficient rates, and that many of the rates of public utilities operating in this state are not what they should be, thereby entailing a grave injustice on the public or the utilities; and that this act is necessary for the preservation of the public peace, health and safety; an emergency is therefore declared and this act shall take effect and be in force from and after its passage.”

Acts 1937, No. 133, § 2: effective on passage.

Acts 1939, No. 107, § 9: approved Feb. 20, 1939. Emergency clause provided: “Whereas, Arkansas recently has been admitted to membership in the Southeastern Governors Conference, which is striving for Southwide betterment, and whereas, on invitation from the Governor of Arkansas, officially designated representatives of the States of Louisiana and Oklahoma have given assurances of active cooperation in bringing about freight rate adjustments advantageous to the Southwest, and, whereas, Eastern and Northern States, long beneficiaries of the high freight rate barrier standing between the South and permanent prosperity, have mobilized their resources and their manpower in Congress to resist the South's efforts to improve its economic conditions; therefore, an emergency is hereby declared to exist, making the immediate operation of this act essential for the preservation of the public peace, health and safety, and this Act shall take effect and be in force from and after its passage.”

Acts 1980 (2nd Ex. Sess.), No. 4, § 6: May 8, 1980. Emergency clause provided: “It is hereby found and determined by the General Assembly that the proper regulation of utilities in Arkansas requires that the procedure by which changes in rates are made be amended. This amendment is necessary in order that the needs of the companies may be properly considered while ratepayers are also properly protected. Therefore, an emergency is declared to exist, and this Act being necessary for the of the public peace, health and safety shall be in effect from and after its passage and approval.”

Acts 1981 (1st Ex. Sess.), No. 30, § 8: Dec. 1, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the existing laws of this State authorize public utilities to put proposed rates into effect under bond while the Public Service Commission still has the rate application under consideration; that said laws are working an inequity upon the ratepayers of the State and deny to the Public Service Commission authority to deny such application to place such rates into effect under bond, without first determining that an emergency exists which justifies the same; and that the immediate passage of this Act is necessary to correct said situation and to enable the Public Service Commission to determine that an emergency exists before a pending rate filing may be placed into effect under bond by the public utility prior to final determination and order by the Public Service Commission. Therefore, an emergency is declared to exist and this Act, being necessary for the immediate preservation of the public peace, health and safety shall be in effect from and after its passage and approval.”

Acts 1983, No. 911, § 3: Mar. 30, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly of this State that the practice of public utilities collecting rates under bond during the rehearing and judicial review process works an undue hardship on the people of this state, and immediate correction of this hardship is necessary in order to preserve the public safety, health, peace, and general welfare of the state. Therefore, an emergency is declared to exist, and this Act shall be in full force and effect from the date of its passage and approval.”

Acts 1987, No. 994, § 4: Apr. 14, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that because of the case Ricarte v. State, CR 86-31, a question has arisen over the validity of Act 1181 of the Extended Session of 1976; that this Act is a reenactment of the former law; and that the immediate passage of this Act is necessary to clarify the state of the law on this issue. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Research References

Am. Jur. 13 Am. Jur. 2d, Carriers, § 141 et seq.

C.J.S. 13 C.J.S., Carriers, § 135 et seq.

23-4-601. Construction of §§ 23-4-602, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101.

Nothing in §§ 23-4-602, 23-4-60823-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101 shall be so construed as to amend or repeal any act prior to May 28, 1907, in force, nor to curtail or limit the powers and duties of the Arkansas Department of Transportation.

History. Acts 1907, No. 422, § 8, p. 1137; C. & M. Dig., § 1617; Pope's Dig., § 1942; A.S.A. 1947, § 73-1415; Acts 2017, No. 707, § 110.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-4-602. Violations of §§ 23-4-601, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101, tariff of charges, or rules of department — Penalties — Recovery.

  1. If any person or corporation operating a railroad or express company in this state or any receiver, trustee, or lessee of any such person or corporation violates any of the provisions of §§ 23-4-601, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101, or aids or abets therein, or violates the tariff of charges as fixed by the Arkansas Department of Transportation or any of the rules regarding railroads or express companies as made by the department and for which there is no other penalty prescribed, then such a person or corporation, receiver, trustee, or lessee shall be liable to a penalty of not less than five hundred dollars ($500) nor more than three thousand dollars ($3,000) for each violation of §§ 23-4-601, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101 or such tariff of charges or rules and regulations.
    1. The penalty may be recovered by an action to be brought in the name of the State of Arkansas in the county in which such a violation may occur.
      1. The department shall institute actions for the recovery of the penalties prescribed in §§ 23-4-601, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101 through the prosecuting attorney of the proper district.
      2. The prosecuting attorney shall be allowed a fee by the court not to exceed twenty-five percent (25%) of the amount collected.
      3. If any prosecuting attorney neglects for fifteen (15) days after notice to bring suit, the department may employ some other attorney at law to bring the suit, who shall be allowed a fee therefor to be fixed by the court not to exceed twenty-five percent (25%) of the amount collected.
    2. No suit shall be dismissed or compromised without the consent of the court and of the department. In such cases the prosecuting attorney shall not interfere.
  2. In all trials of cases brought for violation of any tariff of charges by the department, it may be shown in evidence that the tariff so fixed was unjust.
  3. Nothing in this section shall be so construed as to in any manner interfere with any action for damages which may be provided by law.

History. Acts 1907, No. 422, § 7, p. 1137; C. & M. Dig., § 1695; Pope's Dig., § 1998; A.S.A. 1947, § 73-1414; Acts 2017, No. 707, § 111.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

23-4-603. Railroads — Charges to be reasonable and just.

All charges made for any service rendered or to be rendered in the transportation of passengers or property on any railroad in this state, or in connection therewith, or for receiving, delivering, storing, or handling such property shall be reasonable and just. Every unjust and unreasonable charge for such a service is prohibited and declared to be unlawful.

History. Acts 1887, No. 81, § 9, p. 113; C. & M. Dig., § 857; Pope's Dig., § 1061; A.S.A. 1947, § 73-1401.

Cross References. Adequate service, facilities, etc., to be provided, § 23-3-113.

General Assembly to pass laws to prevent excessive charges, Ark. Const., Art. 17, § 10.

Penalty for violating section, § 23-10-103.

Case Notes

Interstate Commerce.

As to interstate shipments, this section and §§ 23-10-10123-10-108, 23-10-110 and 23-11-311 are superseded by the Interstate Commerce Act. Halliday Milling Co. v. Louisiana & Nw. R.R., 80 Ark. 536, 98 S.W. 374 (1906).

23-4-604. Railroads and express companies — Schedule of rates.

  1. In order to ascertain what the regular charge of those companies are, all railroad and express companies doing business in this state are required to keep in all their offices in this state a schedule of the regular rates charged by them, which shall be open to the inspection of any person interested therein.
  2. Any agent of any railroad or express company who fails or refuses to show the schedule of rates of the company to any person interested therein and allow him or her to examine the schedule of rates as provided in subsection (a) of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).

History. Acts 1897, No. 53, §§ 3, 5, p. 72; C. & M. Dig., §§ 873, 875, 10250a; Pope's Dig., §§ 1077, 1079, 14260; A.S.A. 1947, §§ 73-1404, 73-1406.

Publisher's Notes. Acts 1897, No. 53, § 3, is also codified as § 23-17-110.

23-4-605. Railroads and express companies — Overcharging prohibited.

  1. All agents of railroad and express companies doing business in this state are prohibited from charging, collecting, or receiving pay for any goods, wares, packages, merchandise, or any article whatever that may be sent or received by or through their respective offices in excess of the regular rates charged for those articles.
  2. Any person who violates the provisions of subsection (a) of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).

History. Acts 1897, No. 53, §§ 1, 4, p. 72; C. & M. Dig., §§ 872, 874, 10250a; Pope's Dig., §§ 1076, 1078, 14260; A.S.A. 1947, §§ 73-1402, 73-1405.

23-4-606. Continuous railroad lines.

  1. In all cases where there is, by physical connection of railroads, a continuous line of railway communication between railroad stations within this state, whether such stations are on railroads operated by one and the same company or corporation or on railroads operated by different and independent companies or corporations, it shall be the duty of the Arkansas Department of Transportation, to and from such stations, to make just and reasonable rates for freight, express, and passenger traffic, to be observed by all persons, companies, or corporations operating any railroad or engaged in transporting persons or property as express or freight in this state.
    1. All persons, companies, or corporations operating any railroad in this state that forms part of a continuous line of railroad communication to any point in this state shall issue through-passenger tickets and check baggage through to and from points on the continuous line of communication at through-rates and fares.
    2. All freight and traffic carried wholly within this state to and from stations on lines of continuous carriage aforesaid shall be waybilled through at through-rates and tolls from point of departure to point of arrival without being rebilled at junction points. In cases of carload freights, the forwarding carrier shall receive and forward the same in cars in which the freight is tendered without breaking bulk of package.

History. Acts 1903, No. 130, §§ 2, 3, p. 218; C. & M. Dig., §§ 860, 1646; Pope's Dig., §§ 1064, 1967; A.S.A. 1947, §§ 73-1408, 73-1409; Acts 2017, No. 707, § 112.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Authority of Commission.

The Corporation Commission could prevent the restrictive routing of oil products to specified carriers, adopted to enable the initial carrier to receive a larger proportion of revenue from such haul, as such restrictive routing would enable the initial carrier to make the joint rate and to determine the proportion of revenue it should receive. Missouri Pac. R.R. v. Arkansas Corp. Comm'n, 189 Ark. 419, 72 S.W.2d 1047 (1934).

23-4-607. Connecting railroad lines — Division of charges.

If any two (2) or more connecting lines of railroad in this state fail to agree upon a fair and just division of the charges arising from the transportation of freights, passengers, or cars over their lines, the Arkansas Department of Transportation shall make the division and shall fix the pro rata part of such charges to be received by each of the connecting lines.

History. Acts 1903, No. 130, § 4, p. 218; C. & M. Dig., § 1647; Pope's Dig., § 1968; A.S.A. 1947, § 73-1410; Acts 2017, No. 707, § 113.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Authority of Commission.

The Corporation Commission could prevent the restrictive routing of oil products to specified carriers, adopted to enable the initial carrier to receive a larger proportion of revenue from such haul, as such restrictive routing would enable the initial carrier to make the joint rate and to determine the proportion of revenue it should receive. Missouri Pac. R.R. v. Arkansas Corp. Comm'n, 189 Ark. 419, 72 S.W.2d 1047 (1934).

23-4-608. Penalties for violations of §§ 23-4-606 and 23-4-607 — Actions to recover penalties.

  1. If any person or corporation operating a railroad or express company in this state, or any receiver, trustee, or lessee of any such person or corporation, violates any of the provisions of §§ 23-4-606 and 23-4-607, or aids or abets therein, or violates the tariff of charges as fixed by the Arkansas Department of Transportation or any of the rules regarding railroads or express companies as made by the department, and for which there is no other penalty prescribed in §§ 23-4-606 and 23-4-607, then the person or corporation, receiver, trustee, or lessee shall be liable to a penalty of not less than five hundred dollars ($500) nor more than three thousand dollars ($3,000) for each violation of §§ 23-4-606 and 23-4-607, or such tariff of charges or rules and regulations.
    1. The penalty may be recovered by an action to be brought in the name of the State of Arkansas in the county in which the violation may occur.
      1. The department shall institute that action and actions for the recovery of the penalties prescribed in §§ 23-4-606 and 23-4-607 through the prosecuting attorney of the proper district.
      2. The prosecuting attorney shall be allowed a fee by the court not to exceed twenty-five percent (25%) of the amount collected.
      3. If any prosecuting attorney neglects for fifteen (15) days after notice to bring suit, the department may employ some other attorney at law to bring the suit who shall be allowed a fee therefor to be fixed by the court not to exceed twenty-five percent (25%) of the amount collected. In such a case, the prosecuting attorney shall not interfere.
    2. No action for the recovery of penalties shall be dismissed or compromised without the consent of the court and of the department.
  2. In all trials of cases brought for a violation of any tariff charges by the department, it may be shown in defense that the tariff so fixed was unjust.
  3. Nothing in this section shall be so construed as to in any manner interfere with any action for damages which may be provided by law.

History. Acts 1903, No. 130, § 5, p. 218; A.S.A. 1947, §§ 73-1414, 73-1414n; Acts 2017, No. 707, § 114.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

23-4-609. Connecting railroad lines under one management.

  1. Where in this state two (2) or more connecting lines of railroad are operated by, or under, one (1) management or company, or where the majority of the stock of each of two (2) or more railroad companies whose tracks connect is owned or controlled, either directly or indirectly, by any one (1) of these companies, the lines of railroad of all these companies, in respect to the application and making of rates within the meaning and intent of §§ 23-4-601, 23-4-602, 23-4-608 — 23-4-610, 23-4-615, 23-4-706, 23-10-301, and 23-11-101 shall be considered as constituting but one and the same railroad.
  2. Rates for the carriage of freight or passengers over these railroads or any portion of them shall be computed upon a continuous-mileage basis, the same as upon the line of a single railroad company, whether these railroads have separate boards of directors or not.
  3. The Arkansas Department of Transportation shall have the power to fix different rates for different lines bearing the relation to each other described in this section whenever it finds such action necessary to do justice.

History. Acts 1907, No. 422, § 1, p. 1137; C. & M. Dig., § 861; Pope's Dig., § 1065; A.S.A. 1947, § 73-1411; Acts 2017, No. 707, § 115.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (c).

23-4-610. Railroads — Through-freight rates and regulations.

  1. The Arkansas Department of Transportation shall have power, and it is its duty, to investigate all through-freight rates and regulations on railroads in Arkansas.
    1. When the through-freight rates and regulations are, in the opinion of the department, excessive or levied in violation of the interstate commerce law or the rules and regulations of the Interstate Commerce Commission [abolished], the officials of the railroads are to be notified of the facts and requested to reduce the rates or make the proper correction, as the case may be.
    2. When the rates are not changed or the proper corrections are not made according to the request of the department, the department is to notify the Interstate Commerce Commission [abolished] and to apply to it for relief.

History. Acts 1907, No. 422, § 2, p. 1137; C. & M. Dig., § 1630; Pope's Dig., § 1952; A.S.A. 1947, § 73-1412; Acts 2017, No. 707, § 116.

A.C.R.C. Notes. The Interstate Commerce Commission, referred to in this section, was abolished in 1995.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

23-4-611. Railroads — Short lines.

  1. Railroad companies having roads not exceeding fifty (50) miles in length may charge for loading, carrying, and unloading freights at a rate of not more than forty cents (40¢) per one hundred pounds (100 lbs.) for any distance.
    1. The rates charged by any company may be reduced by the Arkansas Department of Transportation whenever it appears that the net annual profits of the company exceed ten percent (10%) of the amount of capital actually invested.
    2. However, the rates shall not be reduced so as to reduce the net annual profits of such a company below ten percent (10%) of the amount of its capital actually invested.
    1. If any railroad company shall charge more than the rates named in this section, the person paying the charges may recover from that railroad company five (5) times the sum so charged, together with the costs of the action, by action before a justice of the peace or other court having jurisdiction.
    2. Service of summons in such an action may be made by delivering a copy of the summons to any agent of the company.

History. Acts 1881, No. 42, §§ 1-3, p. 78; C. & M. Dig., §§ 869-871; Pope's Dig., §§ 1073-1075; A.S.A. 1947, §§ 73-1421 — 73-1423; Acts 2017, No. 707, § 117.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (b)(1).

23-4-612. Railroads — Switching charges on coal cars.

  1. When any railroad in Arkansas moves coal in car lots from one (1) switch or spur on its line to a connecting line and the distance is not more than two and one-half (2½) miles, it shall be allowed to charge and collect for such services three dollars ($3.00) per car.
  2. If the railroad company performing the service described in subsection (a) of this section also furnishes the car in which the freight is loaded, it shall be permitted to charge and collect ten cents (10¢) per ton for the service so rendered.
  3. This section shall not apply to switch limits of cities of the first and second class.
  4. Any railroad company violating the provisions of this section shall be punished as is provided in § 23-4-706.

History. Acts 1909, No. 71, §§ 1-3, p. 185; C. & M. Dig., § 868; Pope's Dig., § 1072; A.S.A. 1947, §§ 73-1424 — 73-1426.

23-4-613. Railroads — Bills of lading.

  1. It shall be unlawful for any railroad company in this state or its officers, agents, or employees to charge and collect or to endeavor to charge and collect from the owner, agent, or consignee of any freight, goods, wares, or merchandise of any kind or character whatever, a greater sum for transporting the freight, goods, wares, or merchandise than is specified in the bill of lading.
  2. Any railroad company, its officers, agents, or employees having possession of any goods, wares, or merchandise of any kind or character whatever shall deliver the goods, wares, or merchandise to the owner, his or her agent, or consignee upon payment of the freight charges as shown by the bill of lading.
  3. Any railroad company, its officers, agents, or employees that refuse to deliver to the owner, agent, or consignee any freight, goods, wares, or merchandise of any kind or character whatever upon the payment, or tender of payment, of the freight charges due as shown by the bill of lading shall be liable in damages to the owner of the freight, goods, wares, or merchandise to an amount equal the amount of the freight charges for every day the freight, goods, wares, or merchandise is held after payment or tender of payment of the charges due as shown by the bill of lading, with the amount to be recovered in any court of competent jurisdiction.

History. Acts 1885, No. 31, §§ 1-3, p. 35; C. & M. Dig., §§ 863-865; Pope's Dig., §§ 1067-1069; A.S.A. 1947, §§ 73-1427 — 73-1429.

Case Notes

Constitutionality.

This section is constitutional. Little Rock & Fort Smith Ry. v. Hanniford, 49 Ark. 291, 5 S.W. 294 (1887).

Liability.

This section does not apply to a company not a party to the bill of lading which has not carried the goods under the bill of lading and has neither authorized nor accepted it. Loewenberg v. Arkansas & La. Ry., 56 Ark. 439, 19 S.W. 1051 (1892); St. Louis, Iron Mountain & S. Ry. v. Gibson, 68 Ark. 34, 56 S.W. 268 (1900).

Tender of Charges.

The entire amount of freight charges for a single shipment must be tendered before any part of the goods can be demanded. St. Louis, Ark. & Tex. Ry. v. Johnson, 53 Ark. 282, 13 S.W. 1096 (1890); Kansas City S. Ry. v. Tonn, 102 Ark. 20, 143 S.W. 577 (1912).

Where bill of lading does not show all charges that are legally demandable by carrier, the statutory penalty is not recoverable upon failure to deliver when tender of amount shown by bill of lading is made. Fordyce v. Johnson, 56 Ark. 430, 19 S.W. 1050 (1892).

23-4-614. Railroads — Freight rates on crushed stone, sand, and gravel.

  1. The maximum rates which any corporation, officer of court, trustee, person, or association of persons operating any railroad line in this state shall be authorized to charge or collect for the transportation by freight from any point within this state to any other point within this state of loads of crushed stone, sand, or gravel in carload lots, shall be as follows:
    1. Twenty-five (25) miles and under, forty cents (40¢) per ton;
    2. Up to and including fifty (50) miles and over twenty-five (25) miles, fifty cents (50¢) per ton;
    3. Up to and including seventy-five (75) miles and over fifty (50) miles, sixty cents (60¢) per ton;
    4. Up to and including one hundred (100) miles and over seventy-five (75) miles, seventy cents (70¢) per ton;
    5. Up to and including one hundred fifty (150) miles and over one hundred (100) miles, eighty cents (80¢) per ton;
    6. Up to and including two hundred (200) miles and over one hundred fifty (150) miles, one dollar ($1.00) per ton;
    7. Up to and including two hundred fifty (250) miles and over two hundred (200) miles, one dollar and fifty cents ($1.50) per ton;
    8. Up to and including three hundred (300) miles and over two hundred fifty (250) miles, one dollar and forty cents ($1.40) per ton; and
    9. Up to and including four hundred (400) miles and over three hundred (300) miles, one dollar and sixty cents ($1.60) per ton.
  2. When shipments are transported over two (2) lines of railroad, an additional charge of thirty cents (30¢) per ton may be made and, when transported over three (3) or more lines, an additional charge of forty cents (40¢) per ton may be made.
  3. A ton, for the purpose of this section, shall be deemed to be two thousand pounds (2,000 lbs.).
    1. The minimum weight upon which the rates shall be calculated shall be the marked capacity of the car in which the shipment is loaded.
    2. However, when the shipper orders a smaller capacity and when the carrier, for its own convenience, places a larger capacity car, then in such cases the carrier shall not charge or collect freight on any greater weight than that actually loaded in the car, except that the weight charged for shall not be less than the marked loading capacity of the car ordered by the shipper.
    3. In every case in which a larger car is placed for loading than is ordered by the shipper, the carrier billing same shall make proper notation both in the bill of lading and the waybill instructing the destination agent as to such fact, to the end that the freight may be calculated upon the basis herein provided and overcharges avoided.
  4. However, the rates prescribed in this section shall apply only to crushed stone, sand, and gravel suitable for use in road building. In order to make the rate available, the shipper shall deliver to the carrier with each shipment a certificate to the effect that the crushed stone, sand, or gravel embraced in the shipment is suitable for and designed to be used in the construction of public highways in this state, and the consignee shall deliver to the carrier, upon receiving the shipment, a certificate of like effect.
    1. If any person or corporation operating any railroad in this state, or any receiver, trustee, or lessee of any such person or corporation shall violate any provision of this section by charging a greater rate on any shipment or any commodity named in this section than is prescribed in this section, the person or corporation, receiver, trustee, or lessee shall be liable to a penalty of not less than five hundred dollars ($500) nor more than three thousand dollars ($3,000) for each and every violation of this section.
    2. The penalty may be recovered by an action brought in the name of the State of Arkansas in any county in which any portion of any line of railroad owned or operated by any such person or corporation, receiver, trustee, or lessee may be situated.

History. Acts 1919, No. 185, §§ 1, 2; C. & M. Dig., §§ 866, 867; Pope's Dig., §§ 1070, 1071; A.S.A. 1947, 73-1419, 73-1420.

23-4-615. Railroads — Sleeping car tariffs.

The Arkansas Department of Transportation is authorized and it is its duty to adopt, change, or make reasonable and just rates, charges, and regulations to govern and regulate sleeping car tariffs and service in order to correct abuses and prevent unjust discrimination and extortion in the rates for sleeping cars.

History. Acts 1907, No. 422, § 4, p. 1137; C. & M. Dig., § 1634; Pope's Dig., § 1955; A.S.A. 1947, § 73-1413; Acts 2017, No. 707, § 118.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-4-616. Railroads — Additional charge for stopping at other than regular station.

Any railroad company may charge the sum of twenty-five cents (25¢) for the carriage of any passenger who may get on or off a train at other than a regular station.

History. Acts 1887, No. 129, § 1, p. 227; C. & M. Dig., § 882; Pope's Dig., § 1084; A.S.A. 1947, § 73-1416.

Case Notes

Regular Station.

A station at which a railroad company kept no regular agent but stopped its trains only when requested or signalled to do so, receiving passengers without tickets and freight without bills of lading, was not a “regular” station within this section. Clark v. Jonesboro, Lake City & E.R.R., 87 Ark. 385, 112 S.W. 961 (1908).

23-4-617. Railroads — Passengers without tickets.

All passengers who may fail to procure regular fare tickets shall be transported over all railroads in this state at the same rate and price charged for regular fare tickets for the same service.

History. Acts 1887, No. 129, § 1, p. 227; C. & M. Dig., § 883; Pope's Dig., § 1085; A.S.A. 1947, § 73-1417.

Case Notes

Passenger-Carrier Relationship.

The purchase of a ticket is not a prerequisite to the relationship of passenger and carrier under this section. St. Louis & S.F.R.R. v. Kilpatrick, 67 Ark. 47, 54 S.W. 971 (1899).

Rules of Railroad.

A railroad company may make rules prohibiting passengers from entering trains without tickets. St. Louis Sw. Ry. v. Hammett, 98 Ark. 418, 136 S.W. 191 (1911).

23-4-618. Railroads — Ejection of passengers upon failure to pay fare.

If any passenger shall refuse to pay his or her fare or toll, it shall be lawful for the conductor of the train and the servants of the corporation to put him or her out of the cars at any usual stopping place the conductor shall select.

History. Acts 1868, No. 71, § 30, p. 290; C. & M. Dig., § 881; Pope's Dig., § 1083; A.S.A. 1947, § 73-1418.

Case Notes

Applicability.

This section is confined to passengers who refuse to pay their fares. Hobbs v. Texas & Pac. Ry., 49 Ark. 357, 5 S.W. 586 (1887).

Damages.

Where passenger was expelled mile from station, he was entitled to damages for delay in completing journey, for time and trouble of having to walk back to station, and for such humiliation as he was made to undergo. Hot Springs R.R. v. Deloney, 65 Ark. 177, 45 S.W. 351 (1898).

Where passenger, carried past his destination, was put off at point several hundred yards beyond a station and walked back three miles to his destination, he was not entitled to compensation for injuries suffered in such three-mile walk but only for his loss in walking back to the station. St. Louis, Iron Mountain & S. Ry. v. Williams, 100 Ark. 356, 140 S.W. 141 (1911).

Ejection.

Where conductor informs passenger he must pay fare or get off and on the passenger's refusal to pay, stops train for him to get off, he is justified in treating such conduct as an expulsion. Hot Springs R.R. v. Deloney, 65 Ark. 177, 45 S.W. 351 (1898).

Where a parent having a child with him refuses to pay the fare for such child, he may be ejected with the child though he had paid his own fare. St. Louis-S.F. Ry. v. Smith, 155 Ark. 519, 244 S.W. 741 (1923).

Freight Trains.

Where rule of company forbids passengers to ride on freight trains from ticket stations without a ticket, failure to purchase ticket before entering train amounts to a refusal to pay fare and passenger can be expelled only at usual stopping place. McCook v. Northrup, 65 Ark. 225, 45 S.W. 547 (1898).

Partial Payment.

Where a passenger has been lawfully ejected from a railway train for nonpayment of fare, he cannot demand to be carried forward on the same train without paying the disputed fare and a purchase of a ticket at the point of ejection will not entitle him to readmission to the train, without payment for that portion of journey already traveled. Chicago, Rock Island & Pac. Ry. v. Watkins, 117 Ark. 488, 175 S.W. 1157 (1915).

Place of Ejectment.

Conductor cannot eject passenger for refusal to pay fare, except at usual stopping place, even though that would take him to his destination. St. Louis, Iron Mountain & S. Ry. v. Branch, 45 Ark. 524 (1885).

Even though passenger got on train at station where passengers were not taken, when conductor demanded his fare he was treating him as a passenger and not as a trespasser and could not eject him except at a regular stopping place. Kansas City, Pittsburg & Gulf Ry. v. Holden, 66 Ark. 602, 53 S.W. 45 (1899).

23-4-619. Railroads — Rate reductions.

When any railroad shall be opened for use, the General Assembly may, from time to time, alter or reduce the rates of toll, fare, freights, or other profits upon the road. However, the rates shall not be so reduced without the consent of the corporation as to produce, with the profits, less than fifteen percent (15%) per annum on the capital actually paid in or, unless upon examination of the amounts received and expended to be made by him or her, the Secretary of State shall ascertain that the net income derived by the company from all sources for the year then last past shall have exceeded an annual income of fifteen percent (15%) upon the capital of the corporation actually paid in.

History. Acts 1868, No. 71, § 29, p. 290; C. & M. Dig., § 862; Pope's Dig., § 1066; A.S.A. 1947, § 73-1407.

Publisher's Notes. This section, insofar as it applies to short line railroads, may be affected by § 23-4-611.

23-4-620. Notice of rate changes.

  1. Unless the Arkansas Department of Transportation otherwise orders, no public utility shall make any change in any rate duly established under this act except after thirty (30) days' notice to the department. This notice shall plainly state the change proposed to be made in the rates then in force and the time when the changed rates will go into effect.
  2. The utility shall also give notice of the proposed changes to other interested parties as the department in its discretion may direct.
  3. The department, for good cause shown, may allow changes in rates without requiring the thirty (30) days' notice, under such conditions as it may prescribe. All allowed changes shall be immediately indicated upon its schedules by the public utility.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 119.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as §§ 23-4-402 and 23-4-403.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Meaning of “this act”. Acts 1935, No. 324, codified as §§ 14-200-101, 14-200-10314-200-108, 14-200-111, 23-1-10123-1-112, 23-2-301, 23-2-30323-2-308, 23-2-310, 23-2-312, 23-2-31423-2-316, 23-2-402, 23-2-405, 23-2-408, 23-2-41023-2-412, 23-2-41423-2-421, 23-2-426, 23-2-428, 23-2-429, 23-3-10123-3-107, 23-3-11223-3-115, 23-3-118, 23-3-119, 23-3-20123-3-206, 23-4-102, 23-4-103, 23-4-10523-4-109, 23-4-205, 23-4-40223-4-405, 23-4-40723-4-418, 23-4-62023-4-634, 23-18-101.

Case Notes

Contents.

There is nothing fatal to a petition for a rate increase merely because the petition asks for more than is allowed on preliminary hearing. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Necessity of Filing.

Where contract with United States providing for reduction in retail rates upon approval by the commission was filed with the commission there was not sufficient compliance with the contract, since to obtain the lower rates the company was required to file a new rate schedule with the commission. United States v. Arkansas Power & Light Co., 165 F.2d 354 (8th Cir. 1948).

Notice.

The only discretion the commission has in connection with the giving of notice as to change in rates is to require the utility to give notice to one or more of the interested parties enumerated in § 23-3-119, it being important to bear in mind that the procedure under this section apparently envisions a full scale rate of hearing which might involve months and the expenditure of thousands of dollars. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

23-4-621. Rate changes to be reflected in schedules.

All proposed changes shall be shown by filing new schedules or shall be plainly indicated upon schedules filed and in force at the time and kept open to public inspection.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-404.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-622. Investigation of rate changes.

Whenever there is filed with the Arkansas Department of Transportation by any public utility any schedule stating a new rate, the department, either upon complaint or upon its own motion and upon reasonable notice, may enter upon any investigation concerning the lawfulness of the rates.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 120.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-405.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Commission's Authority.

It was the duty of the commission when utility company sought an increase in rates to determine whether the company was entitled to any increase in order to earn a fair return on its invested capital. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956) (decision prior to creation of Arkansas Transportation Commission).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-623. Suspension of proposed rates.

Pending its investigation and the decision thereon, the Arkansas Department of Transportation by written order at any time before the new rate becomes effective may suspend the operation of the rate. However, the suspension shall not be for a longer period than nine (9) months beyond the time when the rate would otherwise go into effect. Any order initially suspending the rate shall set a specific date for the commencement of a hearing inquiring into the rate requested unless waived by the applicant utility.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 121.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-407.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Purpose.

Because the investigation and consideration of rate applications can become such a complex and time consuming procedure, the General Assembly has given the commission the authority to suspend the collection of proposed rate increases for up to a specified period during the time the commission is deliberating on the application, a provision obviously designed to protect the public from the collection of rate increases which the commission later determines to be unwarranted. Arkansas Pub. Serv. Comm'n v. Yelcot Tel. Co., 266 Ark. 365, 585 S.W.2d 362 (1979).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-624. Interim implementation of suspended rates.

  1. If the public utility contends that an immediate and impelling necessity exists for the requested rate increase, a petition may be filed with the Arkansas Department of Transportation narrating the alleged circumstances and requesting a hearing on the petition.
  2. The hearing must commence within thirty (30) days from the date of the filing of the petition or at such subsequent time as may be mutually agreeable to the department and the utility.
  3. If the department finds at the hearing that there is substantial merit to the allegations of the utility's claims, the department may permit all or a portion of the rate to become effective if there is filed with the department a bond to be approved by it, payable to the State of Arkansas in such amount and with such sufficient security to insure the prompt payment of any damages or refunds, with interest, to the persons entitled thereto if the rate so put into effect is finally determined to be excessive or if there is substituted for the bond other arrangements satisfactory to the department for the protection of the parties interested.
  4. The findings of the department relative to the petition of the utility for the immediate and impelling necessity for relief shall be issued on or before the sixtieth day following the date of filing of the petition.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; 1985, No. 523, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 122.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-408.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Bond.

The terms of §§ 23-4-62023-4-634 are considered as if they were written into any bond filed under this section, and, in determining the extent of liability on the bond, the language of this section is controlling over the language of the bond. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Commission's Authority.

Inclusion of requests both for rate increase and escalator clauses in one schedule upon petition of gas company for increase in consumption rate was not fatal to the power of the commission to allow the rate increase to go into effect under bond where it at the same time recited that the proposed escalator clauses were not to go into effect until further order of the commission. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Under petition for rate increase by gas company, the company had the right when it filed its schedule to ask that its monthly consumption rate go into effect under bond and that proposed escalator clauses be considered on final hearing under § 23-4-108. Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956).

Contest of Rate Increase.

Where the customers and ratepayers had been allowed to intervene in rate increase proceedings before the Arkansas Public Service Commission, they had a full and adequate opportunity to contest the proposed rate increase and its statutory basis; and, therefore, the circuit court had no jurisdiction over a subsequent class action suit brought by the customers of the utility, in which they alleged that part of this section was unconstitutional in that it allows a utility to collect a requested rate increase under bond. Oklahoma Gas & Elec. Co. v. Lankford, 278 Ark. 595, 648 S.W.2d 65 (1983).

Cited: City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-625. Rate increase not effective until final order.

Unless the Arkansas Department of Transportation finds an immediate and impelling necessity exists or if the department fails to enter a timely order as provided in § 23-4-624, no public utility shall place any rate increase into effect until a final decision and order is made by the department.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; 1985, No. 523, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 123.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-409.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Effective Date.

Where order for increased rate went into effect on specified date, fact that company billed creditors one month in advance did not prevent rates from going into effect on specified date. City of Ft. Smith v. Southwestern Bell Tel. Co., 220 Ark. 70, 247 S.W.2d 474 (1952).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-626. Authority of department to fix rates — Apportionment of increase.

  1. If, after the investigation and hearing thereon, the Arkansas Department of Transportation finds the new rate to be unjust, unreasonable, discriminatory, or otherwise in violation of the law or rules of the department, it shall determine and fix the just and reasonable rate to be charged or applied by the utility for the service in question, from and after the time the new rate took effect.
  2. Until rate schedules in compliance with the department’s order can be filed and approved, any rate increase allowed in the department's order shall be apportioned among all classes of customers and shall become effective on all bills rendered thereafter through a temporary surcharge or other equitable means, as shall be prescribed in the order.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 124.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-410.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Purpose.

The General Assembly contemplated that the investigation and hearing pursuant to this section should be completed and an order for a refund made during the six month suspension period. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Appeals.

Consumer which did not appeal decision granting a rate change within the required time could not collaterally attack the rate schedule as discriminatory in a circuit court action against the utility and the commission. Commercial Printing Co. v. Arkansas Power & Light Co., 250 Ark. 461, 466 S.W.2d 261 (1971).

Due Process.

There was nothing in the record to indicate a denial in due process of action of commission in establishing a rate yielding a certain return to utility company upon application of company for increase in rates. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Establishment of Rates.

The commission is not bound by any formula or combination of formulas in fixing rates. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Where utility company in its rate application chose the testing period for use in determining rates and the commission accepted the company's choice, the company could not question the use of such testing period. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

It was the duty of the commission when utility company sought an increase in rates to determine whether the company was entitled to any increase in order to earn a fair return on its invested capital. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Upon application of utility company for increase in rates, refusal of commission to allow the average amount of work under construction during testing period to be included in rate base was not improper. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

Upon application of utility company for change in rates, commission was not bound by previous order and could make changes in such order upon proper notice to the company so long as it did not invade the constitutional rights of the company. Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 226 Ark. 225, 289 S.W.2d 668 (1956).

The test year to be used in setting utility rates is a matter lying within the discretion of the Arkansas Public Service Commission, although the commission should consider complete and accurate information with respect to a later period of time, when available, as a check on the continuing validity of the test year experience in a period of rapid change. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Judicial Review.

It is the result reached, not the method employed, that is controlling, and it is the theory but the impact of the rate order that counts in determining whether utility rates are just, reasonable, lawful and nondiscriminatory under this section; if the total effect of the rate order cannot be said to be unjust, unreasonable, unlawful or discriminatory, judicial inquiry is concluded, and infirmities in the method employed rendered unimportant. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Notice to Utility.

The court interpreted the language of § 23-4-108 to mean that once the commission fixes a definite rate, it cannot lower the rate without giving notice to the utility and cannot raise the rate without notifying in some way the ratepayers. City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-627. Failure of department to reach timely decision — Conditional implementation of suspended rates.

In the event no final rate determination has been made upon the schedule for new rates within ten (10) months after the date the schedule for new rates was filed with the Arkansas Department of Transportation, the public utility may put the suspended rate into effect for all bills rendered thereafter immediately upon the filing of a bond to be approved by the department payable to the State of Arkansas in such amount and with sufficient security to insure prompt payment of any refunds to the persons entitled thereto, including an interest rate as determined by the department not to exceed the maximum interest otherwise allowed by law, if the rate or rates so put into effect are finally determined to be excessive. There may be substituted for the bond other arrangements satisfactory to the department for the protection of the parties interested.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 1; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 125.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-411.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Refunds.

The Arkansas Public Service Commission had the power and the authority to order the refund of any rates collected during the suspension period which it ultimately found to be excessive, in spite of the time limitations in this section. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Where the Arkansas Public Service Commission could only suspend the operation of proposed new rates for the statutory period, the commission had no authority to order a refund of revenues collected on the basis of the telephone company's proposed rates between the date of the expiration of the suspension order and the date of the commission order fixing the rates allowed; on the other hand, a refund of the collections made by the telephone company, between the date the company's proposed tariffs were made effective under an “agreement and undertaking” approved by the commission and the date that the period expired, could be ordered even though no valid rate order was entered by the commission within the time limitation on the power of suspension. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-628. Issuance of commission's order — Rates to be collected.

Notwithstanding any other provisions of this act, upon issuance of the findings and order of the Arkansas Public Service Commission as prescribed in § 23-2-421, no public utility subject to the order shall continue to collect any rates theretofore permitted to be collected under bond. The public utility shall be permitted to collect only those rates set in the order of the commission, and those rates shall be effective throughout any rehearing and judicial review proceedings permitted and prescribed in §§ 23-2-42223-2-424.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Meaning of “this act”. See note to § 23-4-620.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-629. Surcharge to collect rates increased by courts.

  1. In the event that the rates set in the order of the Arkansas Department of Transportation subsequently are determined to have been inadequate, either on rehearing or in accordance with court decision on judicial review, the public utility subject to the order shall be entitled to impose a surcharge on the affected customers for collection of the increased rates that otherwise would have been collected during the period between the effective date of the initial order and the effective date of the rates as increased, together with interest as determined by the department at a rate not to exceed the maximum interest rate otherwise allowed by law.
  2. This surcharge shall be assessed over a period equal to the period between the date of the initial order and the effective date of the rates, as increased.
  3. The surcharge shall be distributed among the affected customers in proportion to the amounts those customers were charged during the period between the date of the initial order and the effective date of the rates, as increased.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 126.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-413.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-630. Refunds of excessive rate collections under bond.

In the event a public utility shall have implemented under bond or other arrangements as a matter involving an immediate and impelling necessity under § 23-4-624 an amount which exceeds that allowed by the Arkansas Department of Transportation in its final order, the department shall order the immediate refund of the excessive bonded collections.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 127.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-414.

Amendments. The 2017 amendment substituted “under” for “pursuant to”, and substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Commission's Authority.

The Arkansas Public Service Commission had the power and the authority to order the refund of any rates collected during the suspension period which it ultimately found to be excessive, in spite of the time limitations in this section. Southwestern Bell Tel. Co. v. Ark. Pub. Serv. Comm'n, 267 Ark. 550, 593 S.W.2d 434 (1980).

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-631. Refunds of excessive bonded collections — Order not stayed during rehearing.

An application for rehearing under § 23-2-422 filed by a party aggrieved by the final order of the Arkansas Department of Transportation shall not stay the effectiveness of the order as it pertains to refunds of excessive bonded collections.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 128.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-415.

Amendments. The 2017 amendment substituted “under” for “pursuant to”, and substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-632. Surcharge to collect excessive refunds.

In the event that the amount of refunds ordered by the Arkansas Department of Transportation in its final order is subsequently determined to have been excessive, either on rehearing or in accordance with a court decision on judicial review, the public utility subject to the order shall be entitled to impose an additional surcharge on the affected customers to recover that portion of the refunds to which it was entitled, together with interest as determined by the department at a rate not to exceed the maximum interest rate otherwise allowed by law. The surcharge shall be assessed over a period equal to the period between the date the rates were implemented under bond and the date of the department's final order. The surcharge shall be distributed among the affected customers in proportion to the amount of refunds those customers received.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; 1981 (1st Ex. Sess.), No. 30, § 2; 1983, No. 911, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 129.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-416.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Case Notes

Cited: Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-633. Petition for mandamus.

If the Arkansas Department of Transportation order is not issued before the expiration of the period of suspension, the filed rates shall remain subject to refund as provided in § 23-4-630, but the applicant utility shall have the right to petition the Pulaski County Circuit Court for a writ of mandamus compelling the issuance of an order by the department within fifteen (15) days of the writ of mandamus issued by the Pulaski County Circuit Court. The petition shall be advanced on the docket above all other pending civil cases, and a hearing thereon shall be held within seven (7) days of the filing of the petition. The scope of review shall be limited to the issue of the failure of the department to act within the time limits provided for in this act.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 130.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-417.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Meaning of “this act”. See note to § 23-4-620.

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984).

23-4-634. Suit to compel refunds — Proceeds.

  1. If the public utility fails to make refunds within thirty (30) days after the effective date of the order requiring such refunds, the Arkansas Department of Transportation shall bring suit in the name of the State of Arkansas, for the use and benefits of all those entitled to a refund, in any court of competent jurisdiction and recover the amount of all refunds due together with interest thereon at a rate not to exceed the maximum rate otherwise allowed by law and all court costs.
  2. No suit to recover the refunds shall be maintained unless instituted within two (2) years after the final determination.
  3. The amount recovered shall be paid to the clerk of the court where the suit was pending. It shall be the clerk's duty to distribute the amount recovered to the persons entitled thereto as directed by the order of judgment of the court.

History. Acts 1935, No. 324, § 18; Pope's Dig., § 2081; Acts 1955, No. 31, § 1; 1975 (Extended Sess., 1976), No. 1181, § 1; 1980 (2nd Ex. Sess.), No. 4, § 1; A.S.A. 1947, § 73-217; reen. Acts 1987, No. 994, § 1; 2017, No. 707, § 131.

A.C.R.C. Notes. This section was reenacted by Acts 1987, No. 994, § 1. Acts 1987, No. 834, provided that 1987 legislation reenacting acts passed in the 1976 Extended Session should not repeal any other 1987 legislation and that such other legislation would be controlling in the event of conflict.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. The provisions of this section, as applicable to the Arkansas Public Service Commission, are codified as § 23-4-418.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Case Notes

Cited: Aluminum Co. of America v. Arkansas Pub. Serv. Comm'n, 226 Ark. 343, 289 S.W.2d 889 (1956); City of El Dorado v. Arkansas Pub. Serv. Comm'n, 235 Ark. 812, 362 S.W.2d 680 (1962); Arkansas Power & Light Co. v. Arkansas Pub. Serv. Comm'n, 261 Ark. 184, 546 S.W.2d 720 (1977); Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 584 F. Supp. 1087 (E.D. Ark. 1984); Walnut Hill Tel. Co. v. Arkansas Pub. Serv. Comm'n, 17 Ark. App. 259, 709 S.W.2d 96 (1986).

23-4-635. Changes in rates by common carriers.

  1. No change shall be made in the rates, fares, and charges or joint rates, fares, and charges that have been filed with the Arkansas Department of Transportation and published by any common carrier in compliance with the requirements of § 23-4-110 except after thirty (30) days' notice to the department and to the public.
  2. The notice shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect.
  3. The proposed changes shall be shown by printing a new schedule or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection.
  4. The department, in its discretion and for good cause shown, may allow changes upon less notice than specified in this section or modify the requirements of this section in respect to publishing, posting, and filing of tariffs, either in particular instances or by general order applicable to special or peculiar circumstances or conditions.
  5. The department is authorized to make suitable rules and regulations for the simplification of schedules of rates, fares, charges, and classifications and to permit, in the rules and regulations, the filing of an amendment of or change in any rate, fare, charge, or classification without filing a complete schedule covering rates, fares, charges, or classifications not changed, if, in its judgment, it is not inconsistent with the public interest.

History. Acts 1937, No. 133, § 1; Pope's Dig., § 2128; A.S.A. 1947, § 73-118; Acts 2017, No. 707, § 132.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment, in (a), substituted “that” for “which” and substituted “Department of Transportation” for “State Highway and Transportation Department”.

23-4-636. [Repealed.]

Publisher's Notes. This section, concerning the penalty for false reports regarding receipt of money for transportation, was repealed by Acts 2005, No. 1994, § 562. The section was derived from Acts 1897, No. 21, § 1, p. 28; C. & M. Dig., § 7136; Pope's Dig., § 9122; A.S.A. 1947, § 73-1430.

23-4-637. Discriminatory interterritorial freight rates.

  1. The Arkansas Department of Transportation is vested with authority to formulate and adopt plans for a complete and thorough study of and attack on interterritorial freight rates adversely affecting Arkansas. However, the plans shall be subject to approval by the Governor.
  2. The department is authorized to enter into contracts with rate experts, accountants, counsel, and others, taking into consideration the integrity, honesty, experience, training, and general fitness of those selected.
  3. The department is authorized and directed, on behalf of the State of Arkansas and with approval by the Governor, to enter into agreements with other states, or associations of states or of governors or other authorized representatives of states, to institute, prosecute, or intervene in proceedings before the Interstate Commerce Commission [abolished] to remove freight rate discriminations against Arkansas and the southern and southwestern territories.

History. Acts 1939, No. 107, §§ 1-3; 2017, No. 707, § 133.

A.C.R.C. Notes. The Interstate Commerce Commission, referred to in this section, was abolished in 1995.

Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Subchapter 7 — Railroads and Express Companies — Establishing Rates

Effective Dates. Acts 1899, No. 53, § 31: effective on passage.

Research References

Am. Jur. 13 Am. Jur. 2d, Carriers, § 141 et seq.

C.J.S. 13 C.J.S., Carriers, § 135 et seq.

23-4-701. Definition.

As used in this act, unless the context otherwise requires, “engaged in transporting persons or property” shall be held to include all carriers of property by railroad, whether the carriers are designated as freight or express.

History. Acts 1899, No. 53, § 24, p. 82; C. & M. Dig., § 1622; Pope's Dig., § 1944; A.S.A. 1947, § 73-1523.

Meaning of “this act”. Acts 1899, No. 53, codified as §§ 23-2-110, 23-2-414, 23-4-608, 23-4-70123-4-720, 23-11-103, 23-11-104.

23-4-702. Application of Acts 1899, No. 53.

  1. All the provisions of this act shall apply to and include all persons, companies, or corporations carrying property on any railroad as express matter and known as express companies, as fully as if the persons, companies, or corporations were specially named and designated in this act.
  2. All the provisions of this act shall apply to all property and all the services in and about the transportation thereof on one (1) actually or substantially continuous carriage, or a part thereof, and to the compensation therefor, whether the property is carried wholly on one (1) railroad or partly on several railroads and whether the services are performed or compensation paid or received by, or to, one (1) person or corporation, alone, or in connection with another or other persons or corporations.

History. Acts 1899, No. 53, §§ 10, 24, p. 82; C. & M. Dig., §§ 877, 1622; Pope's Dig., §§ 1081, 1944; A.S.A. 1947, §§ 73-1514, 73-1523.

Meaning of “this act”. See note to § 23-4-701.

Case Notes

Cited: Myar v. St. Louis Sw. Ry., 71 Ark. 552, 76 S.W. 557 (1903).

23-4-703. Acts 1899, No. 53, not applicable to interstate traffic.

The provisions of this act shall not be construed as to require the Arkansas Department of Transportation to investigate or call upon any railroad or express company for its schedule or tariff of charges in the transportation of passengers or property from any point wholly outside of this state or to in any way interfere with such rates or charges.

History. Acts 1899, No. 53, § 20, p. 82; C. & M. Dig., § 1629; Pope's Dig., § 1951; A.S.A. 1947, § 73-1520; Acts 2017, No. 707, § 134.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department”.

Meaning of “this act”. See note to § 23-4-701.

23-4-704. Remedies cumulative.

The remedies given by this act shall be regarded as cumulative. This act shall not be construed as repealing any statute giving such remedies.

History. Acts 1899, No. 53, § 30, p. 82; A.S.A. 1947, § 73-1526.

Meaning of “this act”. See note to § 23-4-701.

23-4-705. Violations — Double damages for violations — Actions to recover damages — Joinder of actions.

  1. Each and every act, matter, or thing in this act declared to be unlawful is prohibited.
  2. In case any person or corporation as defined in this act who, while engaged in the transportation of persons or property, shall do, or permit to be done, any act, matter, or thing in this act required to be done, or shall be guilty of any of the violations of any of the provisions of this act, then that person or corporation shall be held to pay to the person, firm, or corporation injured an amount which is double the amount of damages so sustained, plus all costs. The amount shall be recovered by the person, firm, or corporation so damaged in any court having jurisdiction of the amount, where the person or corporation causing the damage can be found or has an agent or place of business.
  3. No action for damages shall be sustained unless brought within one (1) year after the cause of action or within one (1) year after the party complaining shall have come to the knowledge of his or her right of action.
  4. As many causes of action as may have accrued within the year to any one (1) person, firm, or company may be joined in the same suit or complaint.

History. Acts 1899, No. 53, § 14, p. 82; C. & M. Dig., § 1007; Pope's Dig., § 1216; A.S.A. 1947, § 73-1517.

Meaning of “this act”. See note to § 23-4-701.

Case Notes

Discrimination.

A carrier is liable for double damage on account of unlawful discrimination under § 23-10-410. Missouri Pac. R.R. v. Kirten Gravel Co., 184 Ark. 1024, 44 S.W.2d 674 (1931).

Limitations Period.

Where original complaint making allegations authorizing recovery of double damages for unlawful discrimination between shippers was filed within statutory period, an amendment filed later specifically asking for double damages was not barred by this section. Missouri Pac. R.R. v. Kirten Gravel Co., 184 Ark. 1024, 44 S.W.2d 674 (1931).

23-4-706. Penalties — Actions to recover.

  1. If any person or corporation operating a railroad or express company in this state, or any receiver, trustee, or lessee of any such person or corporation, violates any of the provisions of this act or aids or abets, or violates the tariff of charges as fixed by the Arkansas Department of Transportation or any of the rules regarding railroads or express companies as made by the department and for which there is no other penalty prescribed in this act, then the person or corporation, receiver, trustee, or lessee shall be liable to a penalty of not less than five hundred dollars ($500) nor more than three thousand dollars ($3,000) for each violation of this act or such tariff of charges or rules and regulations.
    1. The penalty may be recovered by an action to be brought in the name of the State of Arkansas in the county in which the violation may occur.
      1. The department shall institute the action, and actions for the recovery of the penalties prescribed in this act, through the prosecuting attorney of the proper district.
      2. The prosecuting attorney shall be allowed a fee by the court not to exceed twenty-five percent (25%) of the amount collected.
      3. If any prosecuting attorney shall neglect for fifteen (15) days after notice to bring suit, the department may employ some other attorney at law to bring the suit who shall be allowed a fee therefor to be fixed by the court but not to exceed twenty-five percent (25%) of the amount collected. In such a case, the prosecuting attorney shall not interfere.
    2. No such suit shall be dismissed or compromised without the consent of the court and of the department.
  2. In all trials of cases brought for a violation of any tariff charges by the department, it may be shown in defense that the tariff so fixed was unjust. Nothing in this section shall be so construed as to in any manner interfere with the action for damages as provided in § 23-4-705.

History. Acts 1899, No. 53, § 18, p. 82; A.S.A. 1947, §§ 73-1414, 73-1414n; Acts 2017, No. 707, § 135.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Publisher's Notes. For construction of this section, see § 23-4-601.

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

Meaning of “this act”. See note to § 23-4-701.

23-4-707. Rate schedules.

  1. All persons or corporations engaged in the transportation of passengers or property shall and are required to keep posted up at every depot under the control of or in use by those persons or corporations, in a conspicuous place therein, plainly and legibly printed schedules which shall state:
    1. The different kinds and classes of property to be carried;
    2. The different places between which property shall be carried; and
    3. The rate of freight or express charges for carriage between such places and for all services connected with the transportation of such property from the time of its receipt until it is delivered or forwarded.
    1. The schedules shall be posted for at least five (5) days before the schedule shall go into effect, and the schedule shall remain in force until another schedule shall, as aforesaid, be posted.
    2. However, at such points where freight or express are subject to competition by water routes not controlled by this act nor complying with its provisions, the schedule provided for in this section may be posted and go into immediate effect.
  2. Every person or corporation engaged in the transportation of passengers or property shall receive, load, unload, transport, store, and deliver to the consignee of the property any and all of it offered for shipment, whether as freight or express matter, and these services shall be done at and for charges not greater than those specified in the schedule as may at that time be in force. The person or corporation shall, on demand, issue to shippers duplicate freight or express receipts which shall state the class of freight shipped, the weight, and the charges.

History. Acts 1899, No. 53, § 10, p. 82; C. & M. Dig., § 877; Pope's Dig., § 1081; A.S.A. 1947, § 73-1514.

Meaning of “this act”. See note to § 23-4-701.

Case Notes

Duty of Carrier.

A carrier must receive property when tendered for shipment and issue bills of lading therefor, even though on account of temporary congestion of freight, the carrier has insufficient station facilities for taking care of property. St. Louis, Iron Mountain & S. Ry. v. State, 84 Ark. 150, 104 S.W. 1106 (1907).

Cited: Myar v. St. Louis Sw. Ry., 71 Ark. 552, 76 S.W. 557 (1903).

23-4-708. Rate sheets and tariff charges furnished department by railroads.

  1. Every person or corporation operating any railroad or express business in this state is required to furnish the Arkansas Department of Transportation, within fifteen (15) days after notice to do so, with the rate sheet and tariff charges for transportation of every kind over the railroad.
  2. The department shall fix rates and tariffs of charges accordingly for those express companies and railroads, the officers of which fail to furnish rate sheets or tariffs of charges as required in subsection (a) of this section.

History. Acts 1899, No. 53, § 9, p. 82; C. & M. Dig., § 1627; Pope's Dig., § 1949; A.S.A. 1947, § 73-1513; Acts 2017, No. 707, § 136.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in (a).

23-4-709. Ratemaking procedure.

  1. It shall be the duty of the Arkansas Department of Transportation to:
    1. Examine and revise the rate sheet and tariff charges for freight or express matter for each railroad in this state;
    2. Determine whether or not, and in what manner, if any, the charges and rates are more than just and reasonable compensation for the services rendered; and
    3. Determine whether or not and in what manner, if any, such charges and rates are in violation of any of the provisions of this act.
  2. The department:
    1. Will make reasonable and just rates of freight, express, and passenger tariffs to be observed by all persons and corporations operating any railroad or engaged in transporting persons or property as express or freight in this state;
    2. Shall make rules as to charges at any and all points for the necessary hauling and delivering of express and freight; and
    3. Will regulate rates and charges for such services on all railroads as, in their judgment, justice to the public and the person or corporation requires and by rule make the rates and charges conform to the requirements of this act.
  3. The department, in making such rules and regulations, shall first give the person or corporation to be affected notice to appear and show cause, if it can, why no change should be made in the rates then in force and shall take into consideration the character and nature of the service to be performed, the entire earnings of any railroad or express company, the expense of operating the railroad or express company, and the income and value thereof.
  4. When any tariff of charges is corrected and approved, the department shall append a certificate of its approval to the tariff of charges and give notice thereof to any officer or agent of the railroad or express company to be affected thereby. The tariff of charges shall be kept posted for at least five (5) days before the tariff and charges shall go into effect.
  5. The department shall not alter or change any tariff of charges so approved by it except upon ten (10) days' notice in writing to the person or corporation operating the express company or railroad to be affected by the change, giving the person or corporation an opportunity to be heard. The notice is to be given by delivering a copy thereof to any officer or agent of the person or corporation.

History. Acts 1899, No. 53, § 9, p. 82; C. & M. Dig., § 1627; Pope's Dig., § 1949; A.S.A. 1947, § 73-1513; Acts 2017, No. 707, § 137; 2019, No. 315, § 2396.

A.C.R.C. Notes. Pursuant to Acts 1989 (1st Ex. Sess.), No. 153, § 2, references in this section to the Arkansas Transportation Commission have been changed to the Arkansas State Highway and Transportation Department. The Arkansas Transportation Commission was abolished and replaced by the Transportation Regulatory Board and the Transportation Safety Agency pursuant to Acts 1987, No. 572. However, Acts 1989 (1st Ex. Sess.), No. 67, § 23, and Acts 1989 (1st Ex. Sess.), No. 153, §§ 2 and 3, abolished the board and the agency and transferred their powers, functions, and duties to the State Highway Commission and the Arkansas State Highway and Transportation Department, respectively.

Acts 1989 (1st Ex. Sess.), No. 153, § 2, provided, in part: “Wherever the words ‘Arkansas Transportation Commission’ or ‘Transportation Safety Agency’ are used in any provision of the Code, the Acts of Arkansas or any statute, directive, rule or regulation, they shall be hereafter held and taken to mean the Arkansas State Highway and Transportation Department.”

Amendments. The 2017 amendment substituted “Department of Transportation” for “State Highway and Transportation Department” in the introductory language of (a).

The 2019 amendment deleted “and regulations” following “rules” in (b)(2); and substituted “rule” for “regulation” in (b)(3).

Meaning of “this act”. See note to § 23-4-701.

23-4-710. Discrimination in passenger or freight rates or services prohibited.

  1. It shall be unlawful for any person or corporation engaged alone or associated w