Chapter 1. Public Service Commission

§ 77-1-1. Creation of commission; terms, compensation and qualifications of commissioners [Repealed effective December 31, 2020].

A public service commission, hereinafter referred to in this chapter as the commission, is hereby created, consisting of three (3) members, one (1) to be elected from each of the three (3) Supreme Court districts by the qualified electors of such district. Elections for such officers shall be held in the general election in November 1959, and every four (4) years thereafter, and the terms of office of the three (3) commissioners elected at the general election in November 1959 shall expire on December 31, 1963.

The commissioners shall each receive a yearly salary fixed by the Legislature, payable monthly.

The commissioners shall each possess the qualifications prescribed for the Secretary of State. The commissioners shall not operate, own any stock in, or be in the employment of any common or contract carrier by motor vehicle, telephone company, gas or electric utility company, or any other public utility that shall come under their jurisdiction or supervision.

HISTORY: Codes, 1942, § 7688; Laws, 1938, ch. 139; Laws, 1948, ch. 417, § 1; Laws, 1952, ch. 330, § 1; Laws, 1956, ch. 371, § 1; Laws, 1960, ch. 394, § 1; Laws, 1964, ch. 542, § 6; Laws, 1966, ch. 445, § 23; reenacted without change, Laws, 1982, ch. 389, § 1; Laws, 1989, ch. 573, § 1; reenacted, Laws, 1990, ch. 530, § 1; reenacted and amended, Laws, 1993, ch. 616, § 1; reenacted without change, Laws, 1996, ch. 526, § 1; reenacted without change, Laws, 1998, ch. 303, § 1; reenacted without change, Laws, 2002, ch. 452, § 1; reenacted without change, Laws, 2006, ch. 386, § 1; reenacted without change, Laws, 2008, ch. 406, § 1; reenacted without change, Laws, 2011, ch. 456, § 1; reenacted without change, Laws, 2012, ch. 542, § 1; reenacted without change, Laws, 2013, ch. 332, § 1; reenacted without change, Laws, 2016, ch. 437, § 1, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 1, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws, 1996, ch. 526, § 1.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 1.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Acts of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 1.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Provision that three public service commissioners shall be elected in 1987 and every four years thereafter, see §23-15-193.

Nominations for state, district, county, and county district offices which are elective, see §§23-15-291 et seq.

Guaranty or surety bond required of commission members, see §25-1-13.

Salaries of commission members, see §25-3-31.

Deductions from salary of commission members for failure to attend commission meetings, see §25-3-59.

Mississippi Energy Research Center, see §57-55-15.

Requirement that certain documents be furnished to Public Service Commission regarding tender offers involving regulated public utility corporations, see §75-72-105.

Forfeiture of office by commission member who accepts any favor from railroad or other common carrier, see §77-1-11.

Tax on gross revenues of public utilities for payment of expenses of administration of duties imposed on commission, see §77-3-87.

Powers and duties of the commission with respect to automatic dialing-announcing devices, see §77-3-453.

Powers and duties of commission with respect to motor carriers, see §77-7-13.

Prohibition under Motor Carrier Regulatory Law against commission members having any interest in any railroad, motor carrier, steamboat or canal company, see §77-7-17.

Pipeline Safety Division of the Public Service Commission to provide administrative, investigative and legal support for the Underground Facilities Damage Prevention Board, see §77-13-29.

Public access to records supplied by public utilities, see §79-23-1.

JUDICIAL DECISIONS

1. In general.

Legislative act creating the Mississippi Public Service Commission and setting forth its duties and the manner in which it shall function was authorized by Const § 186, and does not unlawfully delegate legislative power or impinge on the power of the governor. Bounds v. L & A Contracting Co., 303 So. 2d 464 (Miss. 1974).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 143, 144 et seq.

CJS.

73B C.J.S., Public Utilities §§ 288, 289 et seq.

Practice References.

Robert L. Hahne, Accounting for Public Utilities (Matthew Bender).

Taxation of Public Utilities (Matthew Bender).

§ 77-1-3. Seal [Repealed effective December 31, 2020].

The commission shall have a seal, having around the margin the words “Mississippi Public Service Commission,” and in the center such device as it may select. The acts of the commission shall be authenticated by its seal.

HISTORY: Codes, 1942, § 7695; Laws, 1938, ch. 139; reenacted without change, Laws, 1982, ch. 382, § 2; reenacted, Laws, 1990, ch. 530, § 2; reenacted without change, Laws, 1993, ch. 616, § 2; reenacted without change, Laws, 1996, ch. 526, § 2; reenacted without change, Laws, 1998, ch. 303, § 2; reenacted without change, Laws, 2002, ch. 452, § 2; reenacted without change, Laws, 2006, ch. 386, § 2; reenacted without change, Laws, 2008, ch. 406, § 2; reenacted without change, Laws, 2011, ch. 456, § 2; reenacted without change, Laws, 2012, ch. 542, § 2; reenacted without change, Laws, 2013, ch. 332, § 2; reenacted without change, Laws, 2016, ch. 437, § 2, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 2, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 2.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 2.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 2.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

§ 77-1-5. Office, meetings and minutes of commission [Repealed effective December 31, 2020].

The commission shall keep an office in the City of Jackson, which shall be kept open Monday through Friday of each week for eight (8) hours each day. The commission shall meet at its office on the first Tuesday of each month and at such other times and places as its duties may require. The commission may sit from day to day and from time to time, and any meeting may be pretermitted not exceeding two (2) in any year.

The members of the commission shall devote their entire time to the performance of their official duties on every business day, except on the legal holidays enumerated in Section 3-3-7, Mississippi Code of 1972. However, official acts of the commission done on legal holidays shall be valid.

The commission shall keep regular minutes of its proceedings, which shall be a public record, and all orders, findings and acts of the commission shall be entered on the minutes.

Two (2) members of the commission shall be a quorum.

HISTORY: Codes, 1942, §§ 7688, 7696; Laws, 1938, ch. 139; Laws, 1948, ch. 417, § 1; Laws, 1952, ch. 330, § 1; Laws, 1956, ch. 371, § 1; Laws, 1960, ch. 394, § 1; Laws, 1964, ch. 542, § 6; Laws, 1966, ch. 445, § 23; reenacted without change, Laws, 1982, ch. 389, § 3; reenacted, Laws, 1990, ch. 530, § 3; reenacted without change, Laws, 1993, ch. 616, § 3; reenacted without change, Laws, 1996, ch. 526, § 3; reenacted without change, Laws, 1998, ch. 303, § 3; reenacted without change, Laws, 2002, ch. 452, § 3; reenacted without change, Laws, 2006, ch. 386, § 3; reenacted without change, Laws, 2008, ch. 406, § 3; reenacted without change, Laws, 2011, ch. 456, § 3; reenacted without change, Laws, 2012, ch. 542, § 3; reenacted without change, Laws, 2013, ch. 332, § 3; reenacted without change, Laws, 2016, ch. 437, § 3, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 3, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the reenactment of this section by Laws of 1996, ch. 526, § 3.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 3.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 3.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Deductions from salary of commission members for failure to attend commission meetings, see §25-3-59.

JUDICIAL DECISIONS

1. In general.

Railroad commission failing to enter on its minutes order continuing proceeding to revise tariff charges after motions to adopt certain rates were lost for lack of seconds, finally discontinued cause, and could not revise charges at subsequent meeting without ten days’ notice to railroads. Mississippi Railroad Com. v. Gulf, M. & N. R. Co., 170 Miss. 724, 155 So. 212, 1934 Miss. LEXIS 157 (Miss. 1934).

§ 77-1-6. Establishment of Public Service Commission Regulation Fund; administration; annual audit; funding of agency expenses; deposit of monies into State General Fund [Repealed effective December 31, 2020].

There is hereby established in the State Treasury a special fund to be known as the “Public Service Commission Regulation Fund.” Such fund shall be the sole fund of the commission for all monies collected and deposited to the credit of or appropriated to the commission. The fund shall be administered as provided in this title and shall be audited annually by the State Auditor.

From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law and as determined by the State Fiscal Officer.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1987, ch. 343, § 1; reenacted and amended, Laws, 1990, ch. 530, § 4; Laws, 1991, ch. 525, § 3; reenacted without change, Laws, 1993, ch. 616, § 4; Laws, reenacted without change, Laws, 1996, ch. 526, § 4; reenacted without change, Laws, 1998, ch. 303, § 4; reenacted without change, Laws, 2002, ch. 452, § 4; reenacted without change, Laws, 2006, ch. 386, § 4; reenacted without change, Laws, 2008, ch. 406, § 4; reenacted without change, Laws, 2011, ch. 456, § 4; reenacted without change, Laws, 2012, ch. 542, § 4; reenacted without change, Laws, 2013, ch. 332, § 4; reenacted without change, Laws, 2016, ch. 437, § 4; Laws, 2016, ch. 459, § 49; Laws, 2017, 1st Ex Sess, ch. 7, § 37, eff from and after passage (approved June 23, 2017); reenacted without change, Laws, 2018, ch. 402, § 4, eff from and after July 1, 2018.

Joint Legislative Committee Note —

Section 4 of ch. 437, Laws of 2016, effective July 1, 2016 (approved April 18, 2016), amended this section. Section 49 of ch. 459, Laws of 2016, effective July 1, 2016 (approved May 6, 2016), also amended this section. As set out above, this section reflects the language of Section 49 of ch. 459, Laws of 2016, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Section7-7-2, as added by Laws of 1984, chapter 488, § 90, and amended by Laws, 1985, chapter 455, § 14, Laws of 1986, chapter 499, § 1, provided, at subsection (2) therein, that the words “state auditor of public accounts,” “state auditor”, and “auditor” appearing in the laws of the state in connection with the performance of auditor’s functions transferred to the state fiscal management board, shall be the state fiscal management board, and, more particularly, such words or terms shall mean the state fiscal management board whenever they appear. Thereafter, Laws of 1989, chapter 532, § 2, amended §7-7-2 to provide that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer, and, more particularly, such words or terms shall mean the State Fiscal Officer whenever they appear. Subsequently, Laws of 1989, ch. 544, § 17, effective July 1, 1989, and codified as §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 4.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 4.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 4.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The first 2016 amendment (ch. 437) reenacted the section without change

The second 2016 amendment (ch. 459) added the last two paragraphs.

The 2017 amendment, effective June 23, 2017, added “and as determined by the State Fiscal Officer” at the end of the second paragraph.

The 2018 amendment reenacted the section without change.

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Duty of the executive secretary of the commission to deposit funds in the Public Service Commission Regulation Fund, see §77-1-15.

Payment of salaries and expenses of various commission officers and employees out of the Public Service Commission Regulation Fund, see §§77-1-27,77-3-8,77-7-339, and77-9-489.

Payment of salaries of employees authorized to enforce railroad laws, see §77-1-27.

Payments to and disbursements from the Public Service Commission Regulation Fund generally, see §77-1-29.

Levy of tax upon utilities and payment of receipts into Public Service Commission Regulation Fund, see §77-3-87.

Additional provisions regarding audits of commission books and accounts, see §77-3-89.

Deposit of funds collected as inspection fees and for identification plates and identification trip permits, see §77-7-127.

Payment, out of the Public Service Commission Regulation Fund, of certain expenses of training motor carrier enforcement officers, see §77-7-333.

Purchase by the commission of equipment necessary to enforce provisions relative to motor carriers (§§77-7-1 et seq.), see §77-7-337.

Payment, out of the Public Service Commission Regulation Fund, of certain expenses of training railroad inspectors, see §77-9-483.

Payment to the credit of the Public Service Commission Regulation Fund of receipts from taxes imposed for regulation of railroads, see §77-9-493.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 143, 144 et seq.

CJS.

73B C.J.S., Public Utilities §§ 288, 289 et seq.

§ 77-1-7. Repealed.

Repealed by Laws of 1983, ch. 467, § 32, eff from and after April 6, 1983.

[Codes 1942, § 7697; Laws, 1938, ch. 139; reenacted without change, Laws, 1982, ch. 389, § 4]

Editor’s Notes —

Former §77-1-7 required common carriers to transport commission members and employees free of charge when they were traveling on official business.

§ 77-1-9. Repealed.

Repealed by Laws of 1983, ch. 467, § 33, eff from and after July 1, 1983.

[Codes, 1942, § 7698; Laws, 1938, ch. 139; reenacted without change, Laws, 1982, ch. 389, § 5]

Editor’s Notes —

Former §77-1-9 required telegraph and telephone companies to handle all communications of the members of the public service commission, and its employees relating to official business of the commission, free of charge.

§ 77-1-11. Acceptance by or offering to commission members, candidates or employees of gifts, passes, campaign contributions or other benefits [Repealed effective December 31, 2020].

  1. It shall be unlawful for any public service commissioner, any candidate for public service commissioner, or any employee of the Public Service Commission or Public Utilities Staff to knowingly accept any gift, pass, money, campaign contribution or any emolument or other pecuniary benefit whatsoever, either directly or indirectly, from any person interested as owner, agent or representative, or from any person acting in any respect for such owner, agent or representative of any common or contract carrier by motor vehicle, telephone company, gas or electric utility company, or any other public utility that shall come under the jurisdiction or supervision of the Public Service Commission. Any person found guilty of violating the provisions of this subsection shall immediately forfeit his or her office or position and shall be fined not less than Five Thousand Dollars ($5,000.00), imprisoned in the State Penitentiary for not less than one (1) year, or both.
  2. It shall be unlawful for any person interested as owner, agent or representative, or any person acting in any respect for such owner, agent or representative of any common or contract carrier by motor vehicle, telephone company, gas or electric utility, or any other public utility that shall come under the jurisdiction or supervision of the Public Service Commission to offer any gift, pass, money, campaign contribution or any emolument or other pecuniary benefit whatsoever to any public service commissioner, any candidate for public service commissioner or any employee of the Public Service Commission or Public Utilities Staff. Any party found guilty of violating the provisions of this subsection shall be fined not less than Five Thousand Dollars ($5,000.00), or imprisoned in the State Penitentiary for not less than one (1) year, or both.
  3. For purposes of this section, the term “emolument” shall include salary, donations, contributions, loans, stock tips, vacations, trips, honorarium, directorships or consulting posts. Expenses associated with social occasions afforded public servants shall not be deemed a gift, emolument or other pecuniary benefit as defined in Section 25-4-103(k), Mississippi Code of 1972.
  4. For purposes of this section, a person who is a member of a water, gas, electric or other cooperative association regulated by the Public Service Commission shall not, by virtue of such membership, be deemed an owner, agent or representative of such association unless such person is acting in any respect for or as an owner, agent or representative of such association; nor shall a person who owns less than one-half of one percent (1/2 of 1%) in stock, the value thereof not to exceed Ten Thousand Dollars ($10,000.00), of any public utility that is regulated by the Public Service Commission, or of any holding company of such public utility, by virtue of such ownership, be deemed an owner, agent or representative of such public utility unless such person is acting in any respect for or as an owner, agent or representative of such public utility.

HISTORY: Codes, 1892, § 4274; 1906, § 4827; Hemingway’s 1917, § 7612; 1930, § 7026; 1942, §§ 7688, 7807; Laws, 1938, ch. 139; Laws, 1948, ch. 417, § 1; Laws, 1952, ch. 330, § 1; Laws, 1956, ch. 371, § 1; Laws, 1960, ch. 394, § 1; Laws, 1964, ch. 542, § 6; Laws, 1966, ch. 445, § 23; reenacted without change, Laws, 1982, ch. 389, § 6; reenacted and amended, Laws, 1990, ch. 530, § 5; Laws, 1991, ch. 586, § 1; reenacted and amended, Laws, 1993, ch. 616, § 5; reenacted without change, Laws, 1996, ch. 526, § 5; reenacted without change, Laws, 1998, ch. 303, § 5; reenacted without change, Laws, 2002, ch. 452, § 5; reenacted without change, Laws, 2006, ch. 386, § 5; reenacted without change, Laws, 2008, ch. 406, § 5; reenacted without change, Laws, 2011, ch. 456, § 5; reenacted without change, Laws, 2012, ch. 542, § 5; reenacted without change, Laws, 2013, ch. 332, § 5; reenacted without change, Laws, 2016, ch. 437, § 5, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 5, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 5.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 5.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws, 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws, 2006, ch. 386, § 5.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Grounds for removal of public officer from office generally, see §25-5-1.

Criminal offenses of bribery involving public or private officers, agents, or trustees, see §§97-11-11,97-11-13.

JUDICIAL DECISIONS

1. In general.

Campaign contribution to member of Mississippi Public Service Commission fit comfortably within definition of “gift” within meaning of this section, a gift being something voluntary transferred by one person to another without compensation, and state law makes acceptance of such money illegal because of its source. Court could not conceive of campaign contributions that fall outside enormous scope of statute’s categories of “any gift, pass, money or any other benefits whatsoever”. United States v. Snyder, 930 F.2d 1090, 1991 U.S. App. LEXIS 7343 (5th Cir. Miss.), cert. denied, 502 U.S. 942, 112 S. Ct. 380, 116 L. Ed. 2d 331, 1991 U.S. LEXIS 6261 (U.S. 1991).

OPINIONS OF THE ATTORNEY GENERAL

Facts of each case would determine if lawyer or other person could be classified as representative or agent of regulated entity; fact that lawyer or engineer has at some point in his or her professional career performed professional services for regulated entity would not per se make that lawyer or engineer representative or agent of that entity. Robinson, May 22, 1990, A.G. Op. #90-0334.

The Attorney General is unable to state that Section 601 of the Federal Aviation Administration Authorization Act of 1994 preempts the enforcement of the criminal provisions of this section. Hebert, May 18, 1995, A.G. Op. #95-0007.

Under this section, a vendor of goods which sells to the public and also makes sales to a public utility, and which is not interested as an owner, agent or representative of a public utility or acting for an owner, agent or representative of a public utility, may legally contribute to a candidate for the MPSC. Hebert, May 18, 1995, A.G. Op. #95-0007.

Under this section, an attorney who performs services for a public utility, is a person “. . . interested as a . . . representative . . .” of the public utility and consequently is an individual who is prohibited from making, either directly or indirectly, a contribution to a candidate for the MPSC whether or not that attorney has multiple clients. Hebert, May 18, 1995, A.G. Op. #95-0007.

Since interstate pipeline companies do not come within the jurisdiction or supervision of the Public Service Commission, these companies or their representatives may legally make campaign contributions to Public Service Commissioners or candidates for Public Service Commissioner. See Section 77-3-5. Hebert, December 6, 1995, A.G. Op. #95-0768.

Campaign contributions legally received from regulated utility companies during a prior Mississippi House of Representatives campaign, that were not spent during that campaign, can be used in a prospective upcoming campaign for Public Service Commissioner even though they would otherwise be prohibited contributions, so long as they were made prior to any discussion or consideration of running for Public Service Commissioner and prior to becoming a candidate for the office, as described in Miss. Code Ann. §77-1-11. Ellington, February 9, 2007, A.G. Op. #07-00071, 2007 Miss. AG LEXIS 20.

§ 77-1-13. Repealed.

Repealed by Laws of 1983, ch. 467, § 34, eff from and after April 6, 1983.

[Codes, 1942, § 7688; Laws, 1938, ch. 139; Laws, 1948, ch. 417, § 1; Laws, 1952, ch. 330, § 1; Laws, 1956, ch. 371, § 1; Laws, 1960, ch. 394, § 1; Laws, 1964, ch. 542, § 6; Laws, 1966, ch. 445, § 23; reenacted without change, Laws, 1982, ch. 389, § 7]

Editor’s Notes —

Former §77-1-13 authorized the public service commission to employ legal counsel.

§ 77-1-15. Employment and duties of executive secretary; funding of agency expenses; deposit of monies into State General Fund [Repealed effective December 31, 2020].

  1. There shall be an executive secretary of the commission, hereinafter referred to in this chapter as the secretary, to be appointed by the commission, by and with the advice and consent of the Senate, for the term of the commissioners. The secretary must have the same qualifications as the commissioners and shall be subject to the same disqualifications and to like penalties, except that he shall not be liable to impeachment. He shall receive a salary fixed by the Legislature. He shall take the oath of office and shall be removable at the pleasure of the commission, which may fill any vacancy until the Senate confirms a successor. The secretary shall make bond as provided for other state officers, in the sum of Ten Thousand Dollars ($10,000.00), conditioned upon the faithful performance of the duties of his office.
  2. The secretary shall collect all fees and penalties collected by or paid to the commission, and shall cover the same into the State Treasury; and all fees and penalties collected under the Mississippi Motor Carrier Regulatory Law of 1938 shall be covered into the Public Service Commission Regulation Fund.
  3. The secretary of the commission shall be the custodian of all records, documents, and the seal of the commission. He shall issue all citations, subpoenas and other rightful orders and documents, and perform all other duties usually required of such officer, and as required by the commission.
  4. It shall be the duty and responsibility of the secretary to supervise and manage the offices and staff of the Public Service Commission and formulate written policies and procedures for the effective and efficient operation of the office and present these policies and procedures to the board for promulgation.
  5. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  6. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Codes, 1942, § 7689; Laws, 1938, ch. 139; Laws, 1946, ch. 352, § 2; Laws, 1948, ch. 418, § 1; Laws, 1952, ch. 330, § 2; Laws, 1958, ch. 350, § 1; Laws, 1960, ch. 394, § 2; Laws, 1966, ch. 445, § 24; reenacted without change, Laws, 1982, ch. 389, § 8; Laws, 1987, ch. 343, § 2; reenacted and amended, Laws, 1990, ch. 530, § 6; reenacted without change, Laws, 1993, ch. 616, § 6; reenacted without change, Laws, 1996, ch. 526, § 6; reenacted without change, Laws, 1998, ch. 303, § 6; reenacted without change, Laws, 2002, ch. 452, § 6; reenacted without change, Laws, 2006, ch. 386, § 6; reenacted without change, Laws, 2008, ch. 406, § 6; reenacted without change, Laws, 2011, ch. 456, § 6; reenacted without change, Laws, 2012, ch. 542, § 6; reenacted without change, Laws, 2013, ch. 332, § 6; reenacted without change, Laws, 2016, ch. 437, § 6; Laws, 2016, ch. 459, § 50, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 6, eff from and after July 1, 2018.

Joint Legislative Committee Note —

Section 6 of ch. 437, Laws of 2016, effective July 1, 2016 (approved April 18, 2016), amended this section. Section 50 of ch. 459, Laws of 2016, effective July 1, 2016 (approved May 6, 2016), also amended this section. As set out above, this section reflects the language of Section 50 of ch. 459, Laws of 2016, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 6.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 6.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 6.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The first 2016 amendment (ch. 437) reenacted the section without change

The second 2016 amendment (ch. 459) added (5) and (6).

The 2018 amendment reenacted the section without change.

Cross References —

Before whom oath of office of public officer may be taken, see §25-1-9.

Filing of oath of office of public officer, see §25-1-11.

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Public Service Commission Regulation Fund, see §77-1-6.

Mississippi Motor Carrier Regulatory Law, see §§77-7-1 et seq.

§ 77-1-17. Employment and duties of rate expert and assistant [Repealed effective December 31, 2020].

The commission is hereby authorized to employ for the term of the commissioners a competent rate expert at a salary fixed by the commission, and an assistant rate expert at a salary fixed by the commission, for the collection of data and evidence for the use of the state in protecting the interest of the state involving duties and obligations of all common carriers, all common carriers by motor vehicle, all restricted common carriers by motor vehicle, and all contract carriers by motor vehicle, and for the establishment of proof in litigation now pending or which may hereafter be instituted.

The rate expert and his assistant shall make all needed investigations affecting rates and rate making and shall perform such other duties as the commission may find necessary for them to do in the interest of the state.

Said duties shall also include the checking and investigating of the filing of rate schedules with the commission, and making of reports to the commission respecting tariffs filed by any of the above-mentioned carriers with the commission involving the increase of any rates for movements within the State of Mississippi, and the general checking and reports to the commission affecting any rates increased from points without the State of Mississippi to points within the State of Mississippi, and from points in the State of Mississippi to points without the State of Mississippi. Said rate experts may be discharged by the commission for incompetency or other good cause, but they shall have notice and an opportunity to be heard in respect to any charge for removal.

HISTORY: Codes, 1942, § 7690; Laws, 1938, ch. 139; Laws, 1946, ch. 352, § 3; Laws, 1948, ch. 418, § 2; Laws, 1952, ch. 330, § 3; Laws, 1958, ch. 350, § 2; Laws, 1966, ch. 445, § 25; reenacted without change, Laws, 1982, ch. 389, § 9; reenacted and amended, Laws, 1990, ch. 530, § 7; reenacted without change, Laws, 1993, ch. 616, § 7; reenacted without change, Laws, 1996, ch. 526, § 7; reenacted without change, Laws, 1998, ch. 303, § 7; reenacted the section without change, Laws, 2002, ch. 452, § 7; reenacted without change, Laws, 2006, ch. 386, § 7; reenacted without change, Laws, 2008, ch. 406, § 7; reenacted without change, Laws, 2011, ch. 456, § 7; reenacted without change, Laws, 2012, ch. 542, § 7; reenacted without change, Laws, 2013, ch. 332, § 7; reenacted without change, Laws, 2016, ch. 437, § 7, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 7, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 7.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 7.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 7.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Duty of attorney general to assist and advise commission generally, see §7-5-49.

§ 77-1-19. Employment of personnel to implement Motor Carrier Regulatory Law [Repealed effective December 31, 2020].

The commission is authorized to employ the following additional employees to carry out and enforce the provisions of the Motor Carrier Regulatory Law of 1938:

An assistant secretary and two (2) stenographer-clerks;

One (1) combined bookkeeper and stenographer;

One (1) stenographer competent to serve as a reporter of evidence taken before the commission; and

Twelve (12) additional employees, which includes seven (7) employees to be transferred from the utility department to the motor carrier department to perform the duties of the commission imposed upon it by the provisions of said Motor Carrier Regulatory Law.

HISTORY: Codes, 1942, § 7692; Laws, 1938, ch. 139; Laws, 1944, ch. 268, § 2; Laws, 1946, ch. 352, § 5; Laws, 1948, chs. 327, § 10, 418, § 3; Laws, 1952, ch. 330, § 4; Laws, 1958, ch. 350, § 3; Laws, 1960, ch. 394, § 3; Laws, 1966, ch. 445, § 26; Laws, 1968, ch. 535, § 1; Laws, 1974, ch. 311; Laws, 1978, ch. 377, § 1; reenacted, Laws, 1982, ch. 389, § 10; reenacted and amended, Laws, 1990, ch. 530, § 8; reenacted without change, Laws, 1996, ch. 526, § 8; reenacted without change, Laws, 1998, ch. 303, § 8; reenacted without change, Laws, 2002, ch. 452, § 8; reenacted without change, Laws, 2006, ch. 386, § 8; reenacted without change, Laws, 2008, ch. 406, § 8; reenacted without change, Laws, 2011, ch. 456, § 8; reenacted without change, Laws, 2012, ch. 542, § 8; reenacted without change, Laws, 2013, ch. 332, § 8; reenacted without change, Laws, 2016, ch. 437, § 8, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 8, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 8.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 8.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 8.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Employment of chief accountant, chief engineer, and other personnel to implement Motor Carrier Regulatory Law, see §77-3-7.

Reporters regularly employed by commission, see §77-3-63.

Mississippi Motor Carrier Regulatory Law, see §§77-7-1 et seq.

§ 77-1-21. Employment of enforcement officer and inspectors to implement Motor Carrier Regulatory Law [Repealed effective December 31, 2020].

  1. For the purpose of enforcing the provisions of the Mississippi Motor Carrier Regulatory Law of 1938, the Mississippi Department of Transportation is authorized to employ, in addition to personnel already employed by the department, one (1) chief enforcement officer and twenty-one (21) inspectors, who shall be under the management of the department. The chief enforcement officer and the inspectors shall devote their full time to the performance of their duties and shall take an oath faithfully to perform the duties of their position. The department shall require bonds to be carried on such employees as the department may deem necessary, the cost thereof to be paid by the department. The chief enforcement officer and inspectors shall be qualified by experience and training in law enforcement or investigative work, and shall attend and satisfactorily complete an appropriate course of instruction established by the Commissioner of Public Safety at the Law Enforcement Officers Training Academy. The chief enforcement officer and the inspectors referred to in this section shall be selected after an examination as to physical and mental fitness. Such employees shall be citizens of the United States and the State of Mississippi, and of good moral character. All such members of staff shall be appointed by the Mississippi Department of Transportation and shall be subject to removal at any time by the department.
  2. The Public Service Commission shall transfer all employees, equipment, inventory and resources of the commission employed and used to enforce the Motor Carrier Regulatory Law of 1938 to the Mississippi Department of Transportation on July 1, 2004. The transfer of personnel shall be commensurate with the number and classification of positions allocated to that law enforcement. The transfer also shall include direct support, clerical, data processing and communications positions allocated to that law enforcement.
  3. The Public Service Commission shall transfer to the Mississippi Department of Transportation each year the amount of funds necessary to support the law enforcement functions being performed for the commission by the department, as specified in the appropriation bill for the Public Service Commission.
  4. Any reference in any statute, rule or regulation to law enforcement duties being performed by the Public Service Commission shall be construed to mean law enforcement duties being performed for the commission by the Mississippi Department of Transportation.

HISTORY: Codes, 1942, § 7692-01; Laws, 1958, ch. 505, § 2; Laws, 1962, ch. 512, § 1; Laws, 1966, ch. 445, § 27; Laws, 1982, ch. 389, § 11; reenacted, Laws, 1990, ch. 530, § 9; reenacted, Laws, 1993, ch. 616, § 8; reenacted without change, Laws, 1996, ch. 526, § 9; reenacted without change, Laws, 1998, ch. 303, § 9; reenacted without change, Laws, 2002, ch. 452, § 9; Laws, 2004, ch. 595, § 22; reenacted without change, Laws, 2006, ch. 386, § 9; reenacted without change, Laws, 2008, ch. 406, § 9; reenacted without change, Laws, 2011, ch. 456, § 9; reenacted without change, Laws, 2012, ch. 542, § 9; reenacted without change, Laws, 2013, ch. 332, § 9; reenacted without change, Laws, 2016, ch. 437, § 9, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 9, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993 of ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 9.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 9.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 9.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2004 amendment rewrote the section.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change

The 2018 amendment reenacted the section without change.

Cross References —

Employment of chief accountant, chief engineer, and other personnel to implement Motor Carrier Regulatory Law, see §77-3-7.

§ 77-1-23. Repealed.

Repealed by Laws of 1992, ch. 496, § 57, eff from and after July 1, 1992.

[Codes, 1942, §§ 7806-01, 7806-02; Laws, 1970, ch. 429, §§ 1, 2; Laws, 1980, ch. 561, § 41; reenacted, Laws, 1982, ch. 389, § 12; reenacted, Laws, 1990, ch. 530, § 10, eff from and after July 1, 1990]

Editor’s Notes —

Former §77-1-23 provided for the employment of inspectors to enforce and investigate violations of railroad laws. Similar provisions may now be found in §65-1-173.

§ 77-1-25. Use of commission property and political activity regulated [Repealed effective December 31, 2020].

No member of the staff of the commission, or any other person, shall use uniforms, material, or equipment of the commission for private or political purposes. Members of the staff of the commission may be candidates for political office but must take a leave of absence to do so. Members of the staff of the commission may take part in political campaigns other than campaigns for Public Service Commission but may not solicit or receive campaign contributions from regulated utilities. Anyone violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided by law and shall be dismissed from the staff of the commission.

HISTORY: Codes, 1942, §§ 7692-07, 7806-07; Laws, 1958, ch. 505, § 8; Laws, 1970, ch. 429, § 7; reenacted without change, Laws, 1982, ch. 389, § 13; reenacted, Laws, 1990, ch. 530, § 11; reenacted and amended, Laws, 1993, ch. 616, § 9; reenacted without change, Laws, 1996, ch. 526, § 10; reenacted without change, Laws, 1998, ch. 303, § 10; reenacted without change, Laws, 2002, ch. 452, § 10; reenacted without change, Laws, 2006, ch. 386, § 10; reenacted without change, Laws, 2008, ch. 406, § 10; reenacted without change, Laws, 2011, ch. 456, § 10; reenacted without change, Laws, 2012, ch. 542, § 10; reenacted without change, Laws, 2013, ch. 332, § 10; reenacted without change, Laws, 2016, ch. 437, § 10, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 10, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 10.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 10.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 10.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provide:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. Resignation required.

Pursuant to Miss. Code Ann. §77-1-25, an employee of the Mississippi Public Service Commission (MPSC) does not have a constitutional right to run for the office of Public Service Commissioner while employed on the staff of the MPSC; in order to so run, he must resign his post. White v. Miss. PSC, 2006 U.S. Dist. LEXIS 1605 (N.D. Miss. Jan. 4, 2006).

In an employee’s suit alleging that four officials of the Mississippi Public Service Commission violated the employee’s constitutional rights by requiring him to resign before running for the office of Public Service Commissioner and by refusing to reinstate him after he lost the election, the officials were entitled to qualified immunity; because Miss. Code Ann. §77-1-25 clearly prevented the employee from running for the office of Commissioner, the officials did not violate any of the employee’s rights by not allowing him to take a leave of absence. White v. Miss. PSC, 2006 U.S. Dist. LEXIS 1605 (N.D. Miss. Jan. 4, 2006).

§ 77-1-27. Payment of salaries [Repealed effective December 31, 2020].

All commission employees provided for in this chapter, and the reasonable and necessary expenses of the administration of the duties imposed on the commission by the Motor Carrier Regulatory Law of 1938, shall be paid out of the appropriations made to defray the expenses of the commission, upon requisitions and warrants in the same manner provided by law for the disbursements of appropriations for the commission. An itemized account shall be kept of all receipts and expenditures and shall be reported to the Legislature by the commission.

HISTORY: Codes, 1942, §§ 7691, 7693, 7806-09; Laws, 1938, ch. 139; Laws, 1944, ch. 268, §§ 1, 2; Laws, 1946, ch. 352, §§ 4, 5; Laws, 1948, ch. 327, § 11; ch. 417, § 2; Laws, 1952, ch. 330, § 5; Laws, 1956, ch. 371, §§ 2, 3; Laws, 1958, ch. 350, § 4; Laws, 1960, ch. 394, § 4; Laws, 1966, ch. 445, § 28; Laws, 1970, ch. 429, § 9; reenacted without change, Laws, 1982, ch. 389, § 14; Laws, 1987, ch. 343, § 3; reenacted and amended, Laws, 1990, ch. 530, § 12; Laws, 1991, ch. 525, § 4; Laws, 1992, ch. 496, § 59; reenacted, Laws, 1993, ch. 616, § 10; reenacted without change, Laws, 1996, ch. 526, § 11; reenacted without change, Laws, 1998, ch. 303, § 11; reenacted without change, Laws, 2002, ch. 452, § 11; reenacted without change, Laws, 2006, ch. 386, § 11; reenacted without change, Laws, 2008, ch. 406, § 11; reenacted without change, Laws, 2011, ch. 456, § 11; reenacted without change, Laws, 2012, ch. 542, § 11; reenacted without change, Laws, 2013, ch. 332, § 11; reenacted without change, Laws, 2016, ch. 437, § 11, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 11, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 11.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 11.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 11.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Public Service Commission Regulation Fund, see §77-1-6.

Public Utilities Staff Regulation Fund, see §77-2-19.

Motor Carrier Regulatory Law, see §§77-7-1 et seq.

§ 77-1-29. Payments to and disbursements from Public Service Commission Regulation Fund; funding of agency expenses; deposit of monies into State General Fund [Repealed effective December 31, 2020].

On or before the twentieth day of each calendar month, the commission shall pay into the State Treasury to the account of the “Public Service Commission Regulation Fund” all monies collected by it during the preceding calendar month, showing from whom collected, when collected and for what purposes collected. All disbursements made by the commission or from the regulation fund for any purposes, other than for salaries provided by law, shall be supported by a detailed and itemized statement approved by the commission for commission disbursements. The commission shall not expend funds from the “Public Service Commission Regulation Fund” to employ personnel whose services would duplicate services provided by any employee of the Public Utilities Staff.

From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Codes, 1942, § 7694; Laws, 1938, ch. 139; Laws, 1944, ch. 268, § 3; Laws, 1946, ch. 352, § 5; Laws, 1948, ch. 327, § 12; Laws, 1952, ch. 330, § 6; Laws, 1958, ch. 505, § 11; Laws, 1962, ch. 512, § 2; Laws, 1966, ch. 541, § 2; Laws, 1968, ch. 536; Laws, 1972, ch. 472, § 1; Laws, 1974, ch. 312; Laws, 1978, ch. 518, § 1; Laws, 1981, ch. 345, § 1; reenacted, Laws, 1982, ch. 389, § 15; Laws, 1983, ch. 530; Laws, 1987, ch. 343, § 4; reenacted and amended, Laws, 1990, ch. 530, § 13; Laws, 1991, ch. 525, § 5; reenacted without change, Laws, 1993, ch. 616, § 11; reenacted without change, Laws, 1996, ch. 526, § 12; reenacted without change, Laws, 1998, ch. 303, § 12; reenacted without change, Laws, 2002, ch. 452, § 12; reenacted without change, Laws, 2006, ch. 386, § 12; reenacted without change, Laws, 2008, ch. 406, § 12; reenacted without change, Laws, 2011, ch. 456, § 12; reenacted without change, Laws, 2012, ch. 542, § 12; reenacted without change, Laws, 2013, ch. 332, § 12; reenacted without change, Laws, 2016, ch. 437, § 12; Laws, 2016, ch. 459, § 51, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 12, eff from and after July 1, 2018.

Joint Legislative Committee Note —

Section 12 of ch. 437, Laws of 2016, effective July 1, 2016 (approved April 18, 2016), amended this section. Section 51 of ch. 459, Laws of 2016, effective July 1, 2016 (approved May 6, 2016), also amended this section. As set out above, this section reflects the language of Section 51 of ch. 459, Laws of 2016, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 12.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 12.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 12.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The first 2016 amendment (ch. 437) reenacted the section without change

The second 2016 amendment (ch. 459) added the last two paragraphs.

The 2018 amendment reenacted the section without change.

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Establishment and administration of the Public Service Commission Regulation Fund, see §77-1-6.

§ 77-1-31. Docket of petitions and complaints [Repealed effective December 31, 2020].

The commission shall keep a docket of petitions and complaints, which shall be entered in regular order. The docket shall be called at each regular meeting of the board, and the cases thereon disposed of, or, if necessary, continued until the next meeting.

HISTORY: Codes, 1892, § 4280; 1906, § 4832; Hemingway’s 1917, § 7617; 1930, § 7031; 1942, § 7808; reenacted without change, Laws, 1982, ch. 389, § 16; reenacted, Laws, 1990, ch. 530, § 14; reenacted without change, Laws, 1993, ch. 616, § 12; reenacted without change, Laws, 1996, ch. 526, § 13; reenacted without change, Laws, 1998, ch. 303, § 13; reenacted without change, Laws, 2002, ch. 452, § 13; reenacted without change, Laws, 2006, ch. 386, § 13; reenacted without change, Laws, 2008, ch. 406, § 13; reenacted without change, Laws, 2011, ch. 456, § 13; reenacted without change, Laws, 2012, ch. 542, § 13; reenacted without change, Laws, 2013, ch. 332, § 13; reenacted without change, Laws, 2016, ch. 437, § 13, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 13, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 13.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 13.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 13.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

JUDICIAL DECISIONS

1. In general.

Railroad commission, failing to enter on its minutes order continuing proceeding to revise tariff charges after motions to adopt certain rates were lost for lack of seconds, finally discontinued cause, and could not revise charges at subsequent meeting without ten days’ notice to railroads. Mississippi Railroad Com. v. Gulf, M. & N. R. Co., 170 Miss. 724, 155 So. 212, 1934 Miss. LEXIS 157 (Miss. 1934).

§ 77-1-33. Process for witnesses; penalty for failure to testify [Repealed effective December 31, 2020].

In any matter of inquiry pending before the commission or any member thereof, subpoenas for witnesses, and subpoenas duces tecum, may be issued by the secretary, under seal, or by any member without the seal, and shall be executed and returned by any sheriff, constable, or marshal, under the like penalties of law for failure to execute and return the process of the circuit court. If any person duly summoned to appear and testify before the commission, or before any one or more of the commissioners, shall fail or refuse to appear and testify, or to bring and produce, as commanded, any book, paper, or document, without a lawful excuse, or shall refuse to answer any proper question propounded to him by the commission or any of the commissioners, or if any person shall obstruct the commission, or one or more of the commissioners in the discharge of duty, or shall conduct himself in a rude, disrespectful, or disorderly manner before the commission deliberating in the discharge of duty, such witness or person shall be guilty of a misdemeanor, and, upon conviction, shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned in the county jail for a period not exceeding six (6) months, or both.

HISTORY: Codes, 1892, § 4285; 1906, § 4837; Hemingway’s 1917, § 7622; 1930, § 7034; 1942, § 7811; reenacted without change, Laws, 1982, ch. 389, § 17; reenacted and amended, Laws, 1990, ch. 530, § 15; reenacted without change, Laws, 1993, ch. 616, § 13; reenacted without change, Laws, 1996, ch. 526, § 14; reenacted without change, Laws, 1998, ch. 303, § 14; reenacted without change, Laws, 2002, ch. 452, § 14; reenacted without change, Laws, 2006, ch. 386, § 14; reenacted without change, Laws, 2008, ch. 406, § 14; reenacted without change, Laws, 2011, ch. 456, § 14; reenacted without change, Laws, 2012, ch. 542, § 14; reenacted without change, Laws, 2013, ch. 332, § 14; reenacted without change, Laws, 2016, ch. 437, § 14, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 14, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 14.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 14.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 14.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 77-1-35. Administration of oaths; taking of affidavits; examination of witnesses; perjury [Repealed effective December 31, 2020].

The several members of the commission and the secretary may, in the discharge of their duties, administer oaths and take affidavits. The commission and each member thereof may examine witnesses under oath in all matters coming before them. If any person shall testify falsely, or make any false affidavit or oath before the commission, or before any of the commissioners, or before any officer, to any matter coming before the commission, he shall be guilty of perjury, and, upon conviction, shall be punished according to law.

HISTORY: Codes, 1892, § 4279; 1906, § 4831; Hemingway’s 1917, § 7616; 1930, § 7035; 1942, § 7812; reenacted without change, Laws, 1982, ch. 389, § 18; reenacted, Laws, 1990, ch. 530, § 16; reenacted without change, Laws, 1993, ch. 616, § 14; reenacted without change, Laws, 1996, ch. 526, § 15; reenacted without change, Laws, 1998, ch. 303, § 15; reenacted without change, Laws, 2002, ch. 452, § 15; reenacted without change, Laws, 2006, ch. 386, § 15; reenacted without change, Laws, 2008, ch. 406, § 15; reenacted without change, Laws, 2011, ch. 456, § 15; reenacted without change, Laws, 2012, ch. 542, § 15; reenacted without change, Laws, 2013, ch. 332, § 15; reenacted without change, Laws, 2016, ch. 437, § 15, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 15, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 15.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 15.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 15.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Punishment of persons convicted of perjury, see §97-9-61.

§ 77-1-37. Payment of witnesses [Repealed effective December 31, 2020].

Witnesses summoned to appear before the commission shall be entitled to the same per diem and mileage as witnesses attending the circuit court. Witnesses summoned by the commission on its behalf shall be paid as are other expenditures of the commission, upon the certificate of the commission showing the amount to which such witness may be entitled. Witnesses summoned for any carrier shall be paid by it.

HISTORY: Codes, 1892, § 4335; 1906, § 4889; Hemingway’s 1917, § 7676; 1930, § 7036; 1942, § 7813; Laws, 1908, ch. 85; reenacted without change, Laws, 1982, ch. 389, § 19; reenacted, Laws, 1990, ch. 530, § 17; reenacted and amended, Laws, 1993, ch. 616, § 15; reenacted without change, Laws, 1996, ch. 526, § 16; reenacted without change, Laws, 1998, ch. 303, § 16; reenacted without change, Laws, 2002, ch. 452, § 16; reenacted without change, Laws, 2006, ch. 386, § 16; reenacted without change, Laws, 2008, ch. 406, § 16; reenacted without change, Laws, 2011, ch. 456, § 16; reenacted without change, Laws, 2012, ch. 542, § 16; reenacted without change, Laws, 2013, ch. 332, § 16; reenacted without change, Laws, 2016, ch. 437, § 16, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 16, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 16.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 16.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws, 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 16.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

Cross References —

Fees of witnesses attending circuit court, see §25-7-47.

§ 77-1-39. Transcripts of oral testimony [Repealed effective December 31, 2020].

In all cases where the testimony of witnesses is given orally before the commission any interested party or the commission shall have the right to have said testimony taken down and transcribed by a stenographer or court reporter, who is not an employee of the commission, to be agreed upon by the parties or appointed by the commission. The stenographer or court reporter so employed shall be duly sworn and his or her certificate that the transcript of such evidence is correct together with the official certificate of any one (1) of the commissioners that he has read the same and that it is in his opinion correct shall entitle such transcript or a certified copy thereof to be received in evidence on any appeal or in any court in this state subject only to any objection that the same is not relevant or material. The stenographer or court reporter shall be paid in accordance with the provisions of Section 9-13-33. The commission shall have the right to require any party demanding an official stenographer to guarantee or prepay the costs thereof in all proper cases.

HISTORY: Codes, 1930, § 7037; 1942, § 7814; Laws, 1926, ch. 128; reenacted without change, Laws, 1982, ch. 389, § 20; reenacted and amended, Laws, 1990, ch. 530, § 18; reenacted without change, Laws, 1993, ch. 616, § 16; reenacted without change, Laws, 1996, ch. 526, § 17; reenacted without change, Laws, 1998, ch. 303, § 17; reenacted without change, Laws, 2002, ch. 452, § 17; reenacted without change, Laws, 2006, ch. 386, § 17; reenacted without change, Laws, 2008, ch. 406, § 17; reenacted without change, Laws, 2011, ch. 456, § 17; reenacted without change, Laws, 2012, ch. 542, § 17; reenacted without change, Laws, 2013, ch. 332, § 17; reenacted without change, Laws, 2016, ch. 437, § 17, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 1, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Section 9-13-33, referred to in this section was repealed by Laws of 1991, ch. 573, § 141, eff from and after July 1, 1991.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 17.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 1998, ch. 303, § 17.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 17.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provide:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

§ 77-1-41. Findings and determinations shall be in writing; proof and effect thereof [Repealed effective December 31, 2020].

All findings of the commission and the determination of every matter by it shall be made in writing and placed upon its minutes. Proof thereof shall be made by a copy of the same duly certified by the secretary under the seal of the commission. Whenever any matter has been determined by the commission, in the course of any proceeding before it the fact of such determination, duly certified, shall be received in all courts and by every officer in civil cases as prima facie evidence that such determination was right and proper. The record of the proceedings of the commission shall be deemed a public record, and shall at all reasonable times be subject to the inspection of the public.

HISTORY: Codes, 1892, § 4284; 1906, § 4836; Hemingway’s 1917, § 7621; 1930, § 7038; 1942, § 7815; reenacted without change, Laws, 1982, ch. 389, § 21; reenacted, Laws, 1990, ch. 530, § 19; reenacted without change, Laws, 1993, ch. 616, § 17; reenacted without change, Laws, 1996, ch. 526, § 18; reenacted without change, Laws, 1998, ch. 303, § 18; reenacted without change, Laws, 2002, ch. 452, § 18; reenacted without change, Laws, 2006, ch. 386, § 18; reenacted without change, Laws, 2008, ch. 406, § 18; reenacted without change, Laws, 2011, ch. 456, § 18; reenacted without change, Laws, 2012, ch. 542, § 18; reenacted without change, Laws, 2013, ch. 332, § 18; reenacted without change, Laws, 2016, ch. 437, § 18, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 18, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 18.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 18.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 18.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

JUDICIAL DECISIONS

1. In general.

2. Judicial review.

1. In general.

The statute does not require the making of detailed findings of fact; an ultimate finding suffices. Illinois C. R. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So. 2d 542, 1962 Miss. LEXIS 317 (Miss. 1962).

The only requirements as to the form of the commission’s order are those of Code 1942, §§ 7815 and 7878. Illinois C. R. Co. v. Jackson Ready-Mix Concrete, 243 Miss. 72, 137 So. 2d 542, 1962 Miss. LEXIS 317 (Miss. 1962).

Chancellor’s decree enjoining order of railroad commission is to be given same force and effect as other decrees of the lower court. Mississippi R. Com. v. Mobile & O. R. Co., 117 Miss. 257, 78 So. 153, 1918 Miss. LEXIS 173 (Miss. 1918).

2. Judicial review.

The findings of fact of the public service commission are prima facie correct, and the reviewing court cannot substitute its judgment for that of the commission or disturb its findings where there is any substantial basis in evidence for such findings or where the ruling of the commission is not capricious or arbitrary. Mississippi Public Service Com. v. Alabama G. S. R. Co., 294 So. 2d 173, 1974 Miss. LEXIS 1817 (Miss. 1974).

Under this section, the commission’s findings are prima facie correct, and the reviewing court may not substitute its own judgment for that of the commission where there is a substantial basis in the evidence for such findings. Mississippi Public Service Com. v. Illinois C. R. Co., 235 Miss. 46, 108 So. 2d 573, 1959 Miss. LEXIS 401 (Miss. 1959).

Where the essential facts are not contradicted, the reviewing court may determine as a matter of law whether they are sufficient to support the order of the commission. Citizens of Stringer v. Gulf, M. & O. R. Co., 229 Miss. 1, 90 So. 2d 25, 1956 Miss. LEXIS 580 (Miss. 1956).

Where it was uncontradicted that the continuance of an agency station in an unincorporated community would be at a substantial financial loss and result in economic waste, and it clearly appeared that the substitution of a prepay station would adequately meet the reasonable requirements of public convenience and necessity, the order of the Mississippi Public Service Commission refusing to allow the railroad to substitute prepay service was not supported by substantial evidence. Citizens of Stringer v. Gulf, M. & O. R. Co., 229 Miss. 1, 90 So. 2d 25, 1956 Miss. LEXIS 580 (Miss. 1956).

Findings of fact of the public service commission are prima facie correct, and the reviewing court cannot disturb the findings, and substitute its judgment for that of the commission, where there is any substantial basis in evidence for such findings or where the ruling of the commission is not capricious or arbitrary. Tri-State Transit Co. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So. 2d 441, 1944 Miss. LEXIS 273 (Miss. 1944); Citizens of Stringer v. Gulf, M. & O. R. Co., 229 Miss. 1, 90 So. 2d 25, 1956 Miss. LEXIS 580 (Miss. 1956).

The rule or principle that reviewing court cannot disturb the findings and substitute its judgment for that of the commission, where there is substantial evidence in support thereof, applies with respect to a cross-appeal from judgment of circuit court reversing judgment of the public service commission. Tri-State Transit Co. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So. 2d 441, 1944 Miss. LEXIS 273 (Miss. 1944).

Order of public service commission denying an intrastate certificate to a motor carrier, which had an interstate certificate of public necessity and convenience, over the same route, where competing carrier had both intrastate as well as interstate certificates, was supported by substantial evidence, although circuit court had reversed the order to the extent of granting the certificate until the expiration of six months after the end of the war. Tri-State Transit Co. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So. 2d 441, 1944 Miss. LEXIS 273 (Miss. 1944).

In determining question whether substantial evidence supported findings of public service commission, the supreme court, on appeal from judgment of circuit court reversing judgment of public service commission, is controlled by its own consideration of the testimony before the commission, and not by the opinion of the circuit court. Tri-State Transit Co. v. Dixie Greyhound Lines, Inc., 197 Miss. 37, 19 So. 2d 441, 1944 Miss. LEXIS 273 (Miss. 1944).

That a court of competent jurisdiction has the power to review any order made by an administrative commission to determine whether it is supported by substantial evidence, or is surely arbitrary and capricious, beyond the power of the commission to make, or violate some statutory or constitutional right of an interested party, is recognized by this section [Code 1942, § 7815].Dixie Greyhound Lines, Inc. v. Mississippi Public Service Com., 190 Miss. 704, 1 So. 2d 489, 200 So. 579, 1941 Miss. LEXIS 60 (Miss. 1941).

Party attacking order of railroad commission has burden of showing unreasonableness by clear and satisfactory evidence. Mississippi R. Com. v. Mobile & O. R. Co., 115 Miss. 101, 75 So. 778, 1917 Miss. LEXIS 190 (Miss. 1917).

The findings of the railroad commission, under this section [Code 1942, § 7815], are not final, but subject to judicial review. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 181.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 8-10, 26, 37, 50 et seq. (orders of commission).

CJS.

73B C.J.S., Public Utilities §§ 224-238.

§ 77-1-43. Enforcement of laws and orders, decisions and determinations of commission [Repealed effective December 31, 2020].

The commission may apply to the circuit or chancery court, by proper proceeding, for aid in the enforcement of obedience to its process, and to compel compliance with Title 77, Mississippi Code of 1972, and its lawful rules, regulations, orders, decisions, and determinations. Said courts shall have jurisdiction to grant aid and relief in such cases, subject to the right of appeal to the Supreme Court by the party aggrieved. The commission itself may, by order after notice and hearing, institute such proceedings or, at the request of the commission by order after notice and hearing, the Attorney General, or district attorney in his district, shall institute such proceedings in the name of the commission.

HISTORY: Codes, 1892, § 4286; 1906, § 4838; Hemingway’s 1917, § 7623; 1930, § 7040; 1942, §§ 7701, 7817; Laws, 1938, ch. 139; reenacted without change, Laws, 1982, ch. 389, § 22; reenacted and amended, Laws, 1990, ch. 530, § 20; reenacted without change, Laws, 1993, ch. 616, § 18; reenacted without change, Laws, 1996, ch. 526, § 19; reenacted without change, 1998, ch. 303, § 19; reenacted without change, Laws, 2002, ch. 452, § 19; reenacted without change, Laws, 2006, ch. 386, § 19; reenacted without change, Laws, 2008, ch. 406, § 19; reenacted without change, Laws, 2011, ch. 456, § 19; reenacted without change, Laws, 2012, ch. 542, § 19; reenacted without change, Laws, 2013, ch. 332, § 19; reenacted without change, Laws, 2016, ch. 437, § 19, eff from and after July 1, 2016; reenacted and amended, Laws, 2018, ch. 402, § 19, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 19.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 19.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 19.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted and amended the section by substituting “Title 77, Mississippi Code of 1972, and its lawful rules, regulations” for “the law and its lawful” in the first sentence and adding “The commission itself may…after notice and hearing” at the beginning of the last sentence; and deleted former (2) and (3), which read: “(2) Any action for violation of the law, or for the violation of any lawful rule, regulation or order of the commission may be instituted by the commission or by the Attorney General in any court of competent jurisdiction. (3) The remedies given by this chapter against all carriers under the supervision of the commission, are cumulative to those now in existence by law.”

JUDICIAL DECISIONS

1. In general.

The commission is a “party aggrieved” within this provision, by a circuit court decision cancelling a commission order. Mississippi Public Service Com. v. Holloway Transfer & Storage Co., 247 Miss. 184, 150 So. 2d 411, 1963 Miss. LEXIS 292 (Miss. 1963).

Where the operating authority granted to a competing freight carrier authorized it to serve certain communities on the state highway and to traverse a U.S. highway but, pursuant to a judicial decision, the competing carrier, with certain exceptions, was limited to a “closed door” operation over the U.S. highway, complainants whose property rights under their franchises were adversely affected by the competing carrier’s alleged day-by-day activities in unlawfully serving communities within the “closed door” area were entitled to injunctive relief, and the doctrines of exhaustion of administrative remedy, and of primary jurisdiction, were inapplicable to the case. Campbell Sixty-Six Express, Inc. v. J. & G. Express, Inc., 244 Miss. 427, 141 So. 2d 720, 1962 Miss. LEXIS 466 (Miss. 1962).

This section does not affect the jurisdiction of courts but simply directs resort to them according to the established jurisdiction. Mississippi R. Com. v. Gulf & S. I. R. Co., 78 Miss. 750, 29 So. 789, 1901 Miss. LEXIS 141 (Miss. 1901).

§ 77-1-45. Repealed.

Repealed by Laws of 1992, ch. 356, § 3, eff from and after July 1, 1992.

[Codes, 1942, §§ 7683, 7699; Laws, 1938, chs. 139, 142; reenacted without change, Laws, 1982, ch. 389, § 23; reenacted, Laws, 1990, ch. 530, § 21, eff from and after July 1, 1990]

Editor’s Notes —

Former §77-1-45 provided for the method by which an appeal could be taken from a final finding, order or judgment of the Public Service Commission. Similar provisions can now be found in §77-7-295.

§ 77-1-47. Appeal bonds; supersedeas bonds [Repealed effective December 31, 2020].

Appeals from any final finding, order or judgment of the commission shall be taken and perfected by the filing of a bond in the sum of Five Hundred Dollars ($500.00) with two (2) sureties, or with a surety company qualified to do business in Mississippi as the surety, conditioned to pay the cost of such appeal. Said bond shall be approved by the chairman or secretary of the commission, or by the judge of the court to which such appeal is taken in case the chairman or secretary of the commission refuses to approve a proper bond tendered to them within the time limited for taking appeals. The commission may grant a supersedeas bond on any appeal, in such penalty and with such surety thereon as it may deem sufficient, and may, during the pendency of any appeal, at any time, require the increase of any such supersedeas bond or additional securities thereon. The judge of the Circuit Court of Hinds County may on petition therefor by any party entitled to an appeal, presented to him within six (6) months of the date of the final finding, order, or judgment of the commission appealed from, award a writ of supersedeas to any such final finding, order, or judgment of the commission, upon the filing of a supersedeas bond in an amount to be fixed by said judge. All appeal bonds for the payment of costs, and all supersedeas bonds, shall be made payable to the state and may be enforced in the name of the state by motion or other legal proceedings or remedy in any circuit court of this state having jurisdiction of a motion or action on such bond, and the process and proceedings thereon shall be as provided by law upon bonds of like character required and taken by any court of this state. Such circuit court may render and enter like judgments upon such bonds as may, by law, be rendered and entered upon bonds of like character, and process of execution shall issue upon such judgments, and may be levied and executed as provided by law in other cases.

HISTORY: Codes, 1942, §§ 7684, 7700; Laws, 1938, chs. 139, 142; reenacted without change, Laws, 1982, ch. 389, § 24; reenacted, Laws, 1990, ch. 530, § 22; reenacted without change, Laws, 1993, ch. 616, § 19; reenacted without change, Laws, 1996, ch. 526, § 20; reenacted without change, Laws, 1998, ch. 303, § 20; reenacted without change, Laws, 2002, ch. 452, § 20; reenacted without change, Laws, 2006, ch. 386, § 20; reenacted without change, Laws, 2008, ch. 406, § 20; reenacted without change, Laws, 2011, ch. 456, § 20; reenacted without change, Laws, 2012, ch. 542, § 20; reenacted without change, Laws, 2013, ch. 332, § 20; reenacted without change, Laws, 2016, ch. 437, § 20, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 20, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 20.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 20.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 20.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

§ 77-1-49. Annual reports of the commission [Repealed effective December 31, 2020].

The commission shall make a report every year to the Legislature of all its acts and doings for the preceding fiscal year.

HISTORY: Codes, 1892, § 4333; 1906, § 4887; Hemingway’s 1917, § 7674; 1930, § 7041; 1942, § 7818; Laws, 1908, ch. 84; Laws, 1970, ch. 523, § 1; reenacted without change, Laws, 1982, ch. 389, § 25; reenacted, Laws, 1990, ch. 530, § 23; reenacted and amended, Laws, 1993, ch. 616, § 20; reenacted without change, Laws, 1996, ch. 526, § 21; reenacted without change, Laws, 1998, ch. 303, § 21; reenacted without change, Laws, 2002, ch. 452, § 21; reenacted without change, Laws, 2006, ch. 386, § 21; reenacted without change, Laws, 2008, ch. 406, § 21; reenacted without change, Laws, 2011, ch. 456, § 21; reenacted without change, Laws, 2012, ch. 542, § 21; reenacted without change, Laws, 2013, ch. 332, § 21; reenacted without change, Laws, 2016, ch. 437, § 21, eff from and after July 1, 2016; reenacted without change, Laws, 2018, ch. 402, § 21, eff from and after July 1, 2018.

Editor’s Notes —

For the repeal date of this section, see §77-1-51.

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1996, ch. 526, § 21.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Laws of 1998, ch. 303, § 21.

The United States Attorney General, by letter dated July 3, 2002, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2002, ch. 452.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the reenactment of this section by Laws of 2006, ch. 386, § 21.

On December 11, 2008, the United States Attorney General interposed no objection to the reenactment of this section by Laws of 2008, ch. 406.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the reenactment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment reenacted this section without change.

The 2002 amendment reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2008 amendment reenacted the section without change.

The 2011 amendment reenacted the section without change.

The 2012 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment reenacted the section without change.

The 2018 amendment reenacted the section without change.

JUDICIAL DECISIONS

1. In general.

Sections 77-9-1 through 41, 77-1-23, 77-1-49 [Repealed], 77-9-257, and 77-9-265 [Repealed] vest in the Public Service Commission the authority to supervise and regulate common carrier railroads. While the line of authority between the local authorities and the Public Service Commission’s regulation of railroads is not specifically defined by statute, there is a legislative intent that the Public Service Commission has general jurisdiction over common carrier railroads with an official responsibility to the public to see that railroads are operated safely, efficiently, and for the public’s benefit. This responsibility which the Commission has to the entire state manifestly cannot be frustrated by any local ordinance or order, whether by a city or county. Hence, any reasonableness test of a zoning ordinance which applies to a railroad must take into account the obligation of the company to serve efficiently and economically all sections of the state dependent on it for services. Columbus & G. R. Co. v. Scales, 578 So. 2d 275, 1991 Miss. LEXIS 224 (Miss. 1991).

§ 77-1-51. Repeal of §§ 77-1-1 through 77-1-49.

Sections 77-1-1 through 77-1-49, Mississippi Code of 1972, which create the Public Service Commission and prescribe its powers and duties, shall stand repealed as of December 31, 2020.

HISTORY: Laws, 1979, ch. 301, § 53; Laws, 1982, ch. 389, § 26; Laws, 1990, ch. 530, § 24; Laws, 1993, ch. 616, § 21; Laws, 2002, ch. 452, § 22; Laws, 2006, ch. 386, § 22; Laws, 2008, ch. 406, § 22; Laws, 2011, ch. 456, § 22; Laws, 2012, ch. 542, § 22; Laws, 2013, ch. 332, § 22; Laws, 2016, ch. 437, § 22, eff from and after July 1, 2016; Laws, 2018, ch. 402, § 22, eff from and after July 1, 2018.

Editor’s Notes —

Laws of 1993, ch. 616, was submitted to the United States Attorney General for preclearance under Section 5 of the Voting Rights Act of 1965. On August 30, 1993, the U.S. Attorney General interposed no objection to the amendment of this section by Laws of 1993, ch. 616.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 1996, ch. 526, § 22.

On April 6, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 1998, ch. 303, § 22.

On June 29, 2006, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2006, ch. 386, § 22.

On December 11, 2008, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2008, ch. 406, § 22.

Laws of 2011, ch. 456, § 24 provides:

“SECTION 24. This act shall take effect and be in force from and after December 31, 2011, if it is effectuated on or before that date under Section 5 of the Voting Rights Act of 1965, as amended and extended. If it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended after December 31, 2011, this act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.”

By letter dated July 21, 2011, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Chapter 456, Laws of 2011.

Amendment Notes —

The 1998 amendment extended the repeal provision of Sections 77-1-1 through 77-1-49 from December 31, 1999 to December 31, 2002.

The 2002 amendment extended the date of the repealer for §§77-1-1 through77-1-49 from “December 31, 2002” to “December 31, 2006.”

The 2006 amendment extended the date of the repealer for §§77-1-1 through77-1-49 from “December 31, 2006” until “December 31, 2008.”

The 2008 amendment extended the date of the repealer for §§77-1-1 through77-1-49 by substituting “December 31, 2011” for “December 31, 2008.”

The 2011 amendment substituted “December 31, 2012” for “December 31, 2011” at the end of the paragraph.

The 2012 amendment extended the repealer provision from “December 31, 2012” to “December 31, 2013.”

The 2013 amendment extended the repealer provision from “December 31, 2013” to “December 31, 2016.”

The 2016 amendment extended the repealer provision from “December 31, 2016” to “December 31, 2018.”

The 2018 amendment extended the date of the repealer for §§77-1-1 through77-1-49 by substituting “December 31, 2020” for “December 31, 2018.”

Cross References —

Mississippi Agency Review Law, see §5-9-13.

§ 77-1-53. Institution and conduct of proceedings for enforcement of statutes administered by commission or regulations or orders of commission; penalties; appeals; funding of agency expenses; deposit of monies into State General Fund.

  1. Whenever the commission, an employee of the commission or any employee of the public utilities staff has reason to believe that a willful and knowing violation of any statute administered by the commission or any regulation or any order of the commission has occurred, the commission may cause a written complaint to be served upon the alleged violator or violators. The complaint shall specify the provisions of such statute, regulation or order alleged to be violated and the facts alleged to constitute a violation thereof and shall require that the alleged violator appear before the commission at a time and place specified in the notice and answer the charges complained of. The time of appearance before the commission shall not be less than twenty (20) days from the date of the service of the complaint, unless the commission finds that the public convenience or necessity requires that such hearing be held at an earlier date.
  2. The commission shall afford an opportunity for a fair hearing to the alleged violator or violators at the time and place specified in the complaint. On the basis of the evidence produced at the hearing, the commission shall make findings of fact and conclusions of law and enter its order, which in its opinion will be in the best interests of the consuming public. Failure to appear at any such hearing, without prior authorization to do so from the commission, may result in the commission finding the alleged violator guilty of the charges complained of by default, and at such time an order may be entered, including the assessment of a penalty. The commission shall give written notice of such order to the alleged violator and to such other persons as shall have appeared at the hearing or made written request for notice of the order. The commission may assess such penalties as provided in subsection (3) of this section.
  3. Any person found by the commission, pursuant to a hearing or by default as provided in this section, violating any statute administered by the commission, or any regulation or order of the commission in pursuance thereof, shall be subject to a civil penalty of not more than Five Thousand Dollars ($5,000.00) for each violation, to be assessed and collected by the commission. Each day that a violation continues shall constitute a separate violation. In lieu of, or in addition to, the monetary penalty, the commission, for any violation by a certificate holder, may impose a penalty in accordance with Section 77-3-21, Mississippi Code of 1972, if it finds that the violator is not rendering reasonably adequate service. Appeals from the imposition of the civil penalty may be taken to the Circuit Court of the First Judicial District of Hinds County in the same manner as appeals from orders of the commission constituting judicial findings.
  4. All penalties collected by the commission under this section shall be deposited in the Public Service Commission Regulation Fund.
  5. No portion of any penalty or costs associated with an administrative or court proceeding which results in the assessment of a penalty against a public utility for violation of any statute administered by the commission, or any regulation or order of the commission shall be considered by the commission in fixing any rates or charges of such public utility.
  6. This section shall be in addition to any other law which provides for the imposition of penalties for the violation of any statute administered by the commission or any regulation or order of the commission.
  7. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  8. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1991, ch. 562 § 1; Laws, 2016, ch. 459, § 52, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2016 amendment added (7) and (8).

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Public Utilities Staff, see §§77-2-1 et seq.

Actions to recover penalties and criminal prosecutions generally, see §§77-3-81 and77-3-85.

§ 77-1-55. Commission authorized to hire attorneys or consultants to monitor, investigate and seek relief from existing or proposed interstate rates, charges, etc. [Repealed effective July 1, 2020].

  1. The Public Service Commission, with the aid and the assistance of the Public Utilities Staff, shall have the power to monitor, investigate, and seek relief in any appropriate federal forum from all existing or proposed interstate rates, charges, allocations and classifications, and all rules and practices in relation thereto promulgated and prescribed by or for any public utility as defined in Section 77-3-3(d)(i).
  2. The Public Service Commission, with the aid and the assistance of the Public Utilities Staff, may seek relief from any proposed or final decision, order, regulation, rule or law that has an impact on any existing or proposed interstate rate, charge, allocation or classification.
  3. For the purpose of this section, the Public Service Commission and the Executive Director of the Public Utilities Staff may each enter into professional services contracts with one or more attorneys or consultants from a competent, qualified and independent firm as may be required by the commission or the executive director. Costs associated with the professional service contracts shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000.00) for each agency with respect to each rate regulated affected utility in any twelve-month period. The consultants or counsel shall submit periodically, but no less frequently than once each calendar quarter, to the executive director or the commission, as applicable, for approval of payment, itemized bills detailing the work performed. The executive director or the chairman of the commission, as applicable, shall requisition the applicable public utility to make the requisite payments to such consultants. The commission shall allow the utility to recover both the total costs the utility incurred under this section and the carrying charges for those costs through a rate rider established to recover the costs incurred and carrying charges incurred. Such rider shall include a true-up provision to ensure actual recovery of costs paid or otherwise incurred by the utility.
  4. This section shall stand repealed from and after July 1, 2020.

HISTORY: Laws, 2012, ch. 527, § 1; Laws, 2013, ch. 332, § 23; Laws, 2016, ch. 437, § 23, eff from and after July 1, 2016; Laws, 2018, ch. 402, § 23, eff from and after July 1, 2018.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error near the end of subsection (2) by inserting a comma between “charge” and “allocation.” The Joint Committee ratified the correction at its August 16, 2012, meeting.

Amendment Notes —

The 2013 amendment extended the repealer provision in (4), from “July 1, 2013” to “July 1, 2016.”

The 2016 amendment extended the repealer provision in (4), substituting “July 1, 2018” for “July 1, 2016.”

The 2018 amendment extended the date of the repealer for the section by substituting “July 1, 2020” for “July 1, 2018” in (4).

Cross References —

Public Utilities Staff, see §77-2-1 et seq.

Chapter 2. Public Utilities Staff

§ 77-2-1. Public utilities staff created.

There is hereby established a Public Utilities Staff, which shall be completely separate and independent from the Public Service Commission and the Public Service Commission staff. Such staff shall consist of the personnel positions of the executive director, the economic and planning division, legal division, engineering division and accounting division with a State Personnel Board organizational code of twenty thousand (20,000) or larger which were formerly authorized and appropriated under the provisions of Section 77-3-8, Mississippi Code of 1972. The executive director shall establish the organizational structure of the staff, and shall have the authority to create units as deemed appropriate to carry out the responsibilities of the staff. The Public Utilities Staff shall represent the broad interests of the State of Mississippi by balancing the respective concerns of the residential, commercial or industrial ratepayers, and the state and its agencies and departments, and the public utilities. The staff shall consist of a sufficient number of professional, administrative, technical, clerical and other personnel as may be necessary for the staff to perform its duties and responsibilities as hereinafter provided. All such personnel shall be competitively appointed by the executive director and shall be dismissed only for cause in accordance with the rules and regulations of the State Personnel Board. All equipment, supplies, records and any funds appropriated by the Legislature to the Public Service Commission for and on behalf of the Public Utilities Staff shall be transferred to such staff on September 1, 1990. The Public Utilities Staff shall be funded separately from the Mississippi Public Service Commission. Any appropriated funds to the Public Utilities Staff shall be maintained in an account separate from any funds of the Public Service Commission and shall never be commingled therewith.

Notwithstanding any provision of this chapter to the contrary, the personnel positions of the data processing division and the gas pipeline safety division of the Public Utilities Staff shall be the Public Service Commission staff positions authorized under Section 77-3-8, and shall be under the control and supervision of the Public Service Commission from and after March 15, 1991. However, the Public Service Commission staff shall continue to provide at no cost administrative support in the nature of data processing and bookkeeping to the Public Utilities Staff in order to avoid duplication of services.

HISTORY: Laws, 1990, ch. 530, § 25; Laws, 1991, ch. 369, § 1, eff from and after passage (approved March 15, 1991).

Cross References —

Rights, powers and functions of the staff created in this section, see §77-2-3.

Definition of public utilities staff, see §77-2-5.

Tax on gross revenues of public utilities for payment of expenses of administration of duties imposed on staff, see §77-3-87.

§ 77-2-3. Rights and powers of commission, its staff and public utilities staff; functions.

  1. The public utilities staff created pursuant to Section 77-2-1 and the Public Service Commission and commission staff shall have and possess all of the rights and powers to perform all of the duties vested by this chapter.
  2. The functions of the commission, with the aid and assistance of its staff, shall be regulatory and quasi-judicial in nature. It may make such investigations and determinations, hold such hearings, prescribe such rules and issue such orders with respect to the control and conduct of the businesses coming within its jurisdiction. It may adjudicate all proceedings brought before it in which the violation of any law or rule administered by the commission is alleged.
  3. The primary functions of the public utilities staff shall be investigative and advisory in nature.

HISTORY: Laws, 1990, ch. 530, § 26, eff from and after September 1, 1990.

§ 77-2-5. Definitions.

For purposes of this chapter, the terms defined in this section shall have the meaning ascribed as follows:

“Regulatory function” means all duties and procedures concerning the execution and enforcement of the laws, rules, orders, directives, duties and obligations imposed for the control and government of the persons or businesses regulated, together with investigative activities incident thereto and procedures inherently administrative or executive in character.

“Quasi-judicial function” means the promulgation of all orders and directives of particular applicability governing the conduct of the regulated persons or businesses, together with procedures inherently judicial.

“Commission” means the Mississippi Public Service Commission.

“Public utilities staff” means those persons employed by the public utilities staff established in Section 77-2-1.

“Public service commission staff” means those persons employed by the Public Service Commission pursuant to Section 77-3-8, Mississippi Code of 1972.

HISTORY: Laws, 1990, ch. 530, § 27, eff from and after September 1, 1990.

§ 77-2-7. Executive director of public utilities staff; appointment; qualifications; salary.

  1. An executive director of the public utilities staff shall be appointed, on or before July 1, 1990, by the Governor, from recommended candidates to be selected by the Public Service Commission, with the advice and consent of the Senate, to serve for a term of six (6) years. On or before May 15, 1990, the Public Service Commission shall submit to the Governor a list of not less than three (3) and no more than six (6) qualified candidates for the position of executive director. The Governor shall appoint the executive director from the list of qualified candidates nominated. Within sixty (60) days prior to the expiration of the term of the executive director, the Public Service Commission shall submit the names of candidates to the Governor in the manner provided herein. Whenever any vacancy shall occur in the position of executive director the Public Service Commission shall nominate and the Governor shall appoint an executive director, as provided herein, to fill the unexpired term. The executive director shall serve at the will and pleasure of the Governor.
  2. The executive director of the public utilities staff shall hold at least a bachelors degree and shall have extensive managerial experience with a thorough knowledge of public utility economics and the principles of utility service and rate construction. The executive director of the public utilities staff shall possess the ability to analyze quantitative and qualitative data and to develop and adjust regulatory strategies or policies to attain commission objectives. The salary of the executive director shall be set by the Personnel Board and shall be such that it is comparable to salaries of those holding similar positions in other state and federal agencies and commensurate with the duties and responsibilities imposed on this official position which affects the broad interests of the State of Mississippi. Nothing herein shall be construed to prevent reappointment of the executive director for consecutive terms.

HISTORY: Laws, 1990, ch. 530, § 28, eff from and after passage (approved April 2, 1990).

Cross References —

State Personnel Board, see §25-9-109.

§ 77-2-9. Powers and duties of executive director; former staff abolished; appointment of new personnel; qualifications; duties and responsibilities of staff.

  1. The executive director shall have general charge of the operations and administration of the Public Utilities Staff. It shall be the duty and responsibility of the executive director to supervise and manage the offices and personnel on the Public Utilities Staff and formulate written policies and procedures for the effective and efficient operation thereof. The executive director shall be responsible for hiring persons on the staff who meet established qualifications for comparable positions of duty and responsibility. The Public Utilities Staff as formerly created in Section 77-3-8, Mississippi Code of 1972, which consists of the Economic and Planning Division, Legal Division, Engineering Division, Accounting Division and Administrative Services Division, and has a State Personnel Board organizational code of twenty thousand (20,000) or larger, is abolished from and after August 31, 1990. All such former employees shall be eligible to be rehired by the executive director for positions on the Public Utilities Staff created pursuant to Section 77-2-1. Such former employees shall not, by virtue of abolishing such staff, lose any vacation or sick leave benefits previously accrued and, if rehired, shall continue vacation and sick leave as if they had not been terminated. For a period of one (1) year after July 1, 1990, the personnel actions of the Public Utilities Staff shall be exempt from State Personnel Board procedures in order to give the Public Utilities Staff flexibility in making an orderly, effective and timely transition to the mandated reorganization.
  2. The following personnel and members of the Public Utilities Staff shall be competitively appointed by the executive director and shall have at least the knowledge, skills and abilities set forth herein. These requirements shall not be waived, and possession thereof shall be certified by the State Personnel Board:
    1. A chief engineer who is a graduate licensed engineer and who has a thorough knowledge of engineering principles as applied to the design, construction, operation, maintenance and expansion of utility facilities and rate structure determination. The chief engineer shall possess a thorough knowledge of techniques and practices of public utility service and regulation and shall have the ability to evaluate same and to formulate accurate conclusions therefrom.
    2. A certified public accountant who possesses a thorough knowledge of standard accounting procedures, techniques and systems with specific reference to the utility industry. Such accountant shall be experienced in public utility accounting and shall have a thorough knowledge of the financial and organizational structure of public utility companies to include knowledge of the methods by which financing of major additions and extensions to utility operations is acquired.
    3. A director of economics and planning who holds at least a bachelor’s degree in economics and possesses a thorough knowledge of the principles and techniques of economic and financial research and statistical analysis. The director of economics and planning shall have a thorough knowledge of the sources of economic, financial and statistical information and the methods of utilizing these sources, as well as considerable knowledge of capital markets with specific reference to utility financing. This employee shall be experienced in conducting analyses of the utility industry, the economy, cost of money, availability and cost of fuel and energy and other related matters within the authority of the commission.
    4. Supportive technical personnel consisting of rate analysts, accountants, inspectors and statisticians as authorized and appropriated by the Legislature.
    5. A general counsel, who shall be a member of The Mississippi Bar, shall have practiced law for a minimum of five (5) years and who shall possess considerable knowledge of utility regulation generally and of the case law, statutory law and the common law relating thereto.
  3. It shall be the duty and responsibility of the Public Utilities Staff by and through the executive director to:
    1. In uncontested matters review, investigate and make appropriate written recommendations to the commission with respect to the reasonableness of rates charged or proposed to be charged by any public utility and with respect to the consistency of such rates with the public policy of assuring an energy supply adequate to protect the public health and safety and to promote the general welfare;
    2. Review, investigate and make appropriate written recommendations to the commission with respect to the service furnished or proposed to be furnished by any utility;
    3. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all commission proceedings affecting the rates or service of any public utility;
    4. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, petition the commission to initiate proceedings to review, investigate and take appropriate action with respect to the rates or service of public utilities. Receipt of such petition shall be spread on the minutes of the Public Service Commission. The commission shall, within thirty (30) days of receipt of such petition, spread upon its minutes and forward to the Executive Director of the Public Utilities Staff a response detailing actions taken or proposed to be taken;
    5. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all certificate applications filed and provide assistance to the commission in making the analysis and plans required;
    6. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all proceedings wherein any public utility proposes to reduce or abandon service to the public;
    7. Make studies with respect to standards, regulations, practices or service of any public utility; however, the Public Utilities Staff shall have no duty, responsibility or authority with respect to the enforcement of natural gas pipeline safety law, or the federal railroad safety laws, rules or regulations;
    8. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, make written recommendations and reports to the commission regarding all commission proceedings with respect to transfers of franchises, mergers, consolidation and combination of public utilities;
    9. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public and the public utilities, review and investigate contracts of public utilities with affiliates or subsidiaries;
    10. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, advise the commission with respect to regulations and transactions;
    11. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public and the public utilities, review and make recommendations to the commission on all miscellaneous uncontested filings;
    12. Advise the Public Service Commission in writing as to the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities in all major rate cases and automatic adjustment clauses;
    13. When deemed necessary by the executive director, in the broad public interest of the State of Mississippi, the using and consuming public, and the public utilities, review and investigate the justness and reasonableness, to both the public and the public utility, of rates charged or proposed to be charged by any public utility, the rates of which are subject to regulation under the provisions of this chapter; and
    14. Accumulate evidence and other information from public utilities and other sources as required or as may be requested by the Public Service Commission.
  4. The Executive Director of the Public Utilities Staff shall employ the resources of the staff to furnish to the commission, in a timely and expeditious manner, such information and reports or conduct such investigations and provide such other assistance as may be required in order to enforce the laws providing for the regulation of public utilities.
  5. All written recommendations and reports provided to the Public Service Commission from the Public Utilities Staff shall bear the signature of the executive director, who shall maintain a record thereof, including the date such recommendation or report was submitted to the commission.
  6. In no event shall the duties and responsibilities of the Public Utilities Staff be exercised with regard to matters not within the jurisdiction and powers of the Public Service Commission.

HISTORY: Laws, 1990, ch. 530, § 29; Laws, 2014, ch. 379, § 1, eff from and after July 1, 2014.

Amendment Notes —

The 2014 amendment deleted former (2)(d), which read: “A communications engineer who is a graduate licensed engineer and who has a knowledge of engineering principles as applied to the design, construction, extension and expansion of complex public communications systems with extensive experience in the operation and maintenance of the same, in the application of communications regulations and in the determination of communications rates. The communications engineer shall possess a knowledge of techniques and practices for communications rate analysis and shall have the ability to evaluate same and to formulate accurate conclusions therefrom,” and redesignated the remaining paragraphs accordingly; in (2)(e), deleted “State” following “who shall be a member of The Mississippi”; and in (3)(f), deleted “written” following “and the public utilities, make.”

Cross References —

Licensing of engineers, see §§73-13-1 et seq.

§ 77-2-11. Former employees of public service commission, public service commission staff or public utilities staff prohibited from accepting certain employment; prohibition against offering such employment; penalties.

  1. A person who serves as (a) Commissioner of the Public Service Commission, (b) Executive Director of the public utilities staff, or (c) Executive Secretary of the commission shall not, while employed with or within one (1) year after leaving the commission or public utilities staff, accept employment with, receive compensation directly or indirectly from, or enter into a contractual relationship with an entity, or an affiliate company of an entity, that was subject to rate regulation by the commission at the time of his departure.
  2. An entity or an affiliate company of an entity that is subject to rate regulation by the commission, or a person acting on behalf of the entity or its affiliate, shall not negotiate or offer to employ or compensate a commissioner of the Public Service Commission, Executive Director of the public utilities staff or the Executive Secretary of the commission, while the person is so employed or within one (1) year after the person leaves that employment.
  3. A person who is employed with the public utilities staff shall not, within one (1) year, after leaving the public utilities staff, accept employment with, or receive compensation, directly or indirectly from the Public Service Commission or the public service commission staff.
  4. A person who is employed with the Public Service Commission or public service commission staff, shall not, within one (1) year, after leaving the commission or public service commission staff, accept employment with, or receive compensation, directly or indirectly, from the public utilities staff.
  5. A person who violates this section is subject to a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The Attorney General may bring an action in circuit court to collect the penalties provided in this section.

HISTORY: Laws, 1990, ch. 530, § 30, eff from and after September 1, 1990.

§ 77-2-13. Communications regarding issues in contested proceedings prohibited; exceptions; penalties; contested proceeding defined.

  1. A public service commissioner, commission or public utilities staff employee, or consultant assisting the commission in investigating, compiling, evaluating and analyzing the record shall not communicate, directly or indirectly, regarding any issue in a contested proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any commission employee or consultant who has participated in the proceeding in a public advocacy or prosecutorial capacity, any party, his agent or other person acting on his behalf who has a direct or indirect pecuniary interest in the outcome of the proceeding, without notice and opportunity for all parties to participate.
  2. A commission or public utilities staff employee, or consultant who has participated in investigating, compiling, evaluating and analyzing the record in a public advocacy or prosecutorial capacity; any party, his agent or other person acting on his behalf who has a direct or indirect pecuniary interest shall not communicate, directly or indirectly, regarding any issue in a contested proceeding other than communications necessary to procedural aspects of maintaining an orderly process, with any commissioner, employee or consultant assisting the commissioners in investigating, compiling, evaluating and analyzing the record, or any person who is or may reasonably be expected to be involved in the decisional process of the proceeding, without notice and opportunity for all parties to participate.
  3. The provisions of this section shall not apply to the following:
    1. Commissioners may communicate with one another regarding any proceeding;
    2. Commissioners, either individually or as a group, may receive aid in investigating, compiling, evaluating and analyzing the record from legal counsel, other employees or consultants of the commission or public utilities staff who have not participated in the proceeding in a public advocacy or prosecutorial capacity; and
    3. Commissioners may communicate, either individually or as a group, with the general public about matters not regarding a contested proceeding.
  4. The commission shall, in the event of a violation of this section, take whatever action is necessary to ensure that such violation does not prejudice any party or adversely affect the fairness of the proceedings to include but is not limited to the following:
    1. A public service commissioner, consultant, or employee of the commission or public utilities staff who is or may reasonably be expected to be involved in the investigation, compilation, evaluation, analysis or decisional process of a contested proceeding who receives an ex parte communication in violation of this section shall place on the public record of the pending matter all written communications received, all written responses to the communications, and a memorandum stating the substance of all oral communications received, all responses made, and the identity of each person from whom the ex parte communication was received. The chairman of the commission shall advise all parties that these matters have been placed on the record. Upon request made within ten (10) days after notice of the ex parte communication, any party desiring to rebut the communication shall be allowed to place a written rebuttal statement on the record. Portions of the record pertaining to ex parte communications or rebuttal statements do not constitute evidence of any fact at issue in the matter unless a party moves the admission of that portion of the record for purposes of establishing a fact at issue and that portion of the record is so admitted.
    2. If necessary to eliminate the effect of an ex parte communication received in violation of this section, a commissioner who receives the communication may be disqualified, and the portions of the record pertaining to the communication may be sealed by protective order.
    3. The commission may, in its discretion, require, to the extent consistent with the interests of justice and the policy of underlying statutes, the communicator to show cause why his claim in the contested case should not be dismissed, denied, disregarded or otherwise adversely affected as a result of such violation.
    4. Any person found guilty of violating any provision of this section shall be guilty of a misdemeanor and shall be punished by imprisonment not to exceed six (6) months or a fine not to exceed One Thousand Dollars ($1,000.00), or both.
  5. A proceeding shall be considered contested in the following:
    1. Upon the initiation of any proceedings requiring a party to show cause why any action by the commission should not be taken;
    2. In a rate change proceeding when a rate filing is suspended; and
    3. In any adversarial proceeding, when any objection or contest is filed by any party.

      A contested proceeding remains pending until the commission has issued its final order, and the time to petition for reconsideration has expired or the commission has issued an order finally disposing of an application for reconsideration, whichever is later.

HISTORY: Laws, 1990, ch. 530, § 31, eff 60 days after passage (approved April 2, 1990) [See Editor’s Note, below].

Editor’s Notes —

Section 42 of Chapter 530, Laws of 1990, contained effective dates for various sections of Chapter 530. There was no express effective date included for Section 31 (codified as §77-2-13), and, by direction of the Office of the Attorney General of the State of Mississippi, an effective date of 60 days after passage of the act has been inserted in accordance with § 75 of the Mississippi Constitution of 1890 which provides “No law of a general nature, unless therein otherwise provided, shall be enforced until sixty days after its passage”.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. Authority.

Because the Public Service Commission lacked authority to enter into a private settlement agreement, the agreement was unenforceable; no authority exists for the Commission to conduct public business in private. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

§ 77-2-15. Agreements with agencies permitted.

Nothing in this chapter prevents the public utilities staff, the public service commission staff or the commission from entering into agreements with other agencies to coordinate and share services, to conduct joint projects or investigations on matters within the authority and jurisdiction of the parties thereto, or to temporarily assign staff to such projects. No cooperative effort shall interfere with the independence and integrity of either the commission, the public service commission staff, the public utilities staff or any other agency that is a party.

HISTORY: Laws, 1990, ch. 530, § 32, eff from and after July 1, 1990.

§ 77-2-17. Continued force and effect of prior rules and orders; public utilities staff to have access to all data filed with commission.

  1. All valid rules, orders and directives heretofore enforced, issued or promulgated by the Public Service Commission shall remain and continue in force and effect until repealed, modified or superseded by duly authorized rules, orders or directives of the Public Service Commission.
  2. The Public Service Commission shall ensure that the public utilities staff, upon request, shall have access to and copies of all data filed with the commission in connection with any proceeding before the commission.

HISTORY: Laws, 1990, ch. 530, § 33, eff from and after July 1, 1990.

§ 77-2-19. Establishment of Public Utilities Staff Regulation Fund; administration generally; annual audits; disbursements from fund.

  1. There is hereby established in the State Treasury a special fund to be known as the “Public Utilities Staff Regulation Fund.” Such fund shall be the sole fund of the Public Utilities Staff for all monies collected and deposited to the credit of or appropriated to the Public Utilities Staff. The fund shall be administered as provided in this section and Section 77-3-87 and shall be audited annually by the State Auditor.
  2. The Department of Finance and Administration shall advise the Public Utilities Staff of the amount of money on hand in the “Public Utilities Staff Regulation Fund” from time to time. All expenses of the Public Utilities Staff shall be paid by the State Treasurer upon warrants issued by the State Fiscal Officer, and the State Fiscal Officer shall issue his warrants upon requisitions signed by the Executive Director of the Public Utilities Staff. All disbursements made by the executive director from the fund for any purposes, other than salaries, shall be supported by a detailed and itemized statement approved by the executive director. The salaries of all employees of the Public Utilities Staff shall be paid out of the appropriations made to defray the expenses of the Public Utilities Staff upon requisitions and warrants as provided herein. Of the revenue arising from the increased regulatory tax imposed in Section 77-3-87, an amount not less than Three Hundred Fifty-four Thousand One Hundred Thirty-nine Dollars ($354,139.00) may be expended by the executive director for operating increase and salaries to fund additional accounting and telecommunication positions for the Public Utilities Staff. An itemized account shall be kept of all receipts and expenditures and shall be reported to the Legislature by the Public Utilities Staff.

HISTORY: Laws, 1991, ch. 525, § 2, eff from and after passage (approved April 10, 1991).

Editor’s Notes —

Section7-7-2, as added by Laws of 1984, chapter 488, § 90, and amended by Laws of 1985, chapter 455, § 14, Laws of 1986, chapter 499, § 1, provided, at subsection (2) therein, that the words “state auditor of public accounts,” “state auditor”, and “auditor” appearing in the laws of the state in connection with the performance of auditor’s functions transferred to the state fiscal management board, shall be the state fiscal management board, and, more particularly, such words or terms shall mean the state fiscal management board whenever they appear. Thereafter, Laws of 1989, chapter 532, § 2, amended §7-7-2 to provide that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer, and, more particularly, such words or terms shall mean the State Fiscal Officer whenever they appear. Subsequently, Laws of 1989, ch. 544, § 17, effective July 1, 1989, and codified as §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Cross References —

Levy of tax upon utilities and payment of receipts into Public Utilities Staff Regulation Fund, see §77-3-87.

Administration of fund, see §77-3-89.

Chapter 3. Regulation of Public Utilities

Article 1. Certificates of Public Convenience and Necessity; Rates; Service.

§ 77-3-1. Application of article to municipal public utilities.

Except as otherwise provided in Section 77-3-6, any public utility as defined in paragraph (d) of Section 77-3-3, owned or operated by a municipality shall not be subject to the provisions of this article, except as to extension of utilities greater than one (1) mile outside corporate boundaries after March 29, 1956.

HISTORY: Codes, 1942, § 7716-01; Laws, 1956, ch. 372, § 1; Laws, 1968, ch 502, § 1; Laws, 1990, ch. 455, § 2, eff from and after July 1, 1990.

Cross References —

City Utility Tax Law, see §§21-33-201 et seq.

Public water authorities, see §§51-41-1 et seq.

Mississippi Energy Research Center, see §57-55-15.

Exemption from certificate of public convenience and necessity requirement of intrastate gas pipelines, see §§77-11-301 et seq.

Requirement that rural water company organized under Mississippi Nonprofit Corporation Act obtain certificate of public convenience and necessity under this article prior to constructing, operating, or maintaining water transmission or distribution system, see §79-11-393.

JUDICIAL DECISIONS

1. In general.

Mississippi Public Service Commission did not have jurisdiction to regulate the rates charged to ratepayers on cities’ gas-distribution systems because rate-setting jurisdiction was not conferred on the Commission over certain public-utility systems that were either owned or operated by municipalities, except as to extension of utilities greater than one mile outside corporate boundaries after March 29, 1956. City of Tchula v. Miss. PSC, 187 So.3d 597, 2016 Miss. LEXIS 57 (Miss. 2016).

Although Miss. Code Ann. §77-3-1 (Rev. 2000) provided an exemption for municipalities from the Mississippi Public Service Commission regulation for areas within one mile of their corporate limits, the statute did not grant municipalities the exclusive right to operate utilities within one mile of their corporate border nor did the statute preclude a private utility from operating within one mile of a municipality’s city limits. A.B.E., Inc. v. City of Oxford, 830 So. 2d 615, 2002 Miss. LEXIS 227 (Miss. 2002).

Although a town does not need a certificate of public convenience and necessity in order to provide water service within one mile of its boundaries, a town is not thereby given an exclusive right to provide utility services within one mile of its boundaries. Town of Enterprise v. Miss. PSC, 782 So. 2d 733, 2001 Miss. LEXIS 86 (Miss. 2001).

Certificate of public convenience and necessity issued by Public Service Commission (PSC) to utility grants exclusive right to operate in designated area, so long as utility is capable of providing adequate service to customers in area covered by certificate. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Although a city was exempt from certification and rate regulation, this section did not permit an exempt municipal utility to intrude into a regulated utility’s certified area; thus, the trial court properly enjoined a municipally-owned utility from extending electric service into newly annexed areas of the city. City of Kosciusko v. Mississippi Power & Light Co., 370 So. 2d 1339, 1979 Miss. LEXIS 2030 (Miss. 1979).

The language of subdivision H of Code 1942, § 7716-01 [Code 1972, §77-3-1], is not a grant of an area in which a municipality is free to operate its electric lines, but, rather, is an exemption from regulation by the Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

Although a municipal electric utility is not subject to the regulation of the Public Service Commission, and the Commission has no authority to issue a cease and desist order against the municipality, as it may do against regulated utilities, nevertheless, the right to operate a public electric utility under the authority of a certificate of public convenience and necessity issued by the Public Service Commission is a valuable right which may be protected by the courts. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

The invasion of an area certificated to a public utility by another utility, even though the invading utility belongs to a municipality, will subject it to a suit in the courts and to damages growing out of such invasion. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973); Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

Under subdivision H of this section [Code 1942, § 7716-01 ( §77-3-1)], a municipal owned electric power system could, without being subject to the regulations of the public service commission, serve customers within an area no greater than one mile outside the corporate boundaries, and a certificated power association, although permitted to continue to serve those customers within the one mile area which it had served prior to the effective date of Code 1942, § 7716-01, was not entitled to injunctive relief to prevent the municipal electric system from expanding into the one mile area and serving customers there. East Mississippi Electric Power Asso. v. Louisville, 250 Miss. 777, 168 So. 2d 287, 1964 Miss. LEXIS 502 (Miss. 1964).

Subdivision H of this section [Code 1942, § 7716-01 (§77-3-1)], being in the nature of an exemption from regulation rather than a grant, did not convey to a municipal electric system the sole right to operate within an area adjacent to the corporate limits of the city and extending for a distance of one mile from such boundaries. Mississippi Power Co. v. East Mississippi Electric Power Asso., 244 Miss. 40, 140 So. 2d 286, 1962 Miss. LEXIS 421 (Miss. 1962).

A telephone and telegraph company had acquired vested rights under Chapter 38, Laws of 1886, so that Chapter 372, Laws of 1956, to the extent that it authorizes municipalities to impose charges on such company for the use of highways and streets, is unconstitutional, and remanded to District Court with directions to hold the cause while parties proceed to state tribunal for authoritative declaration of applicable state law. Southern Bell Tel. & Tel. Co. v. Meridian, 154 F. Supp. 736, 1957 U.S. Dist. LEXIS 3163 (D. Miss. 1957), aff'd, 256 F.2d 83, 1958 U.S. App. LEXIS 4302 (5th Cir. Miss. 1958).

OPINIONS OF THE ATTORNEY GENERAL

Senate Bill 3009, enrolled as Chapter 884, Local and Private Laws of Mississippi, 1988 does not exempt that portion of the City of Pontotoc gas utility system that extends more than one mile from the City of Pontotoc corporate limits from full regulation by the Mississippi Public Service Commission (MPSC), including the regulation of rates by the MPSC. McKinley, August 27, 1999, A.G. Op. #99-0437.

As Senate Bill 3009, enrolled as Chapter 884, Local and Private Laws of Mississippi, 1988 neither expressly nor impliedly provides the City of Pontotoc an exclusive right to provide gas service to all of Pontotoc County, the Mississippi Public Service Commission, in its discretion, may award a Certificate of Public Convenience and Necessity for gas service to some utility other than the City of Pontotoc for areas in Pontotoc County that lie outside of the one-mile corridor and are not being served by the City of Pontotoc. McKinley, August 27, 1999, A.G. Op. #99-0437.

A county may not provide potable water to an entity within a certificated area without the permission of the holder of the certificate of public necessity even though no compensation is received by the county for the water. Nowak, Apr. 16, 2004, A.G. Op. 03-0569.

Under the provisions of this section, a public utility owned by the city of Holly Springs that is providing electricity to the town of Ashland is exempt from the requirement in §77-3-17 that it pay the town two per cent of it’s gross revenue from sales to residential and commercial customers within the municipality. Stone, Nov. 19, 2004, A.G. Op. 04-0529.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 15-20.

Practice References.

Accounting for Public Utilities (Matthew Bender).

Taxation of Public Utilities (Matthew Bender).

§ 77-3-2. Declaration of policy.

  1. The Legislature finds and determines that the rates, services and operations of public utilities as defined in this title are affected with the public interest and that the availability of an adequate and reliable service by such public utilities to the people, economy and government of the State of Mississippi is a matter of public policy. The Legislature hereby declares to be the policy of the State of Mississippi:
    1. To provide fair regulation of public utilities in the interest of the public;
    2. To promote the inherent advantage of regulated public utilities;
    3. To promote adequate, reliable and economical service to all citizens and residents of the state;
    4. To provide just and reasonable rates and charges for public utility services without unjust discrimination, undue preferences or advantages, or unfair or destructive competitive practices and consistent with long-term management and conservation of energy resources by avoiding wasteful, uneconomic and inefficient uses of energy;
    5. To encourage and promote harmony between public utilities, their users and the environment;
    6. To foster the continued service of public utilities on a well-planned and coordinated basis that is consistent with the level of service needed for the protection of public health and safety and for the promotion of the general welfare;
    7. To cooperate with other states and the federal government in promoting and coordinating interstate and intrastate public utility service and reliability;
    8. To encourage the continued study and research for new and innovative rate-making procedures which will protect the state, the public, the ratepayers and the utilities, and where possible reduce the costs of the rate-making process; and
    9. With respect to rate-regulated public utilities, to foster, encourage, enable and facilitate economic development in the State of Mississippi, and to support and augment economic development activities, and to authorize and empower the Public Service Commission, in carrying out its statutory responsibilities, to take every opportunity to advance the economic development of the state.
  2. To these ends, therefore, authority shall be vested in the Mississippi Public Service Commission to regulate public utilities in accordance with the provisions of this title.
    1. The commission shall, in addition to its other powers and duties, be authorized and empowered, in its discretion, to consider and adopt a formula type rate of return evaluation rate which may include provision for the commission to:
      1. Periodically review and adjust, if required, the utility’s level of revenues based upon the actual books and records of the utility which are periodically the subject of independent audits and regulatory audits;
      2. Review the utility’s performance in certain areas or categories which may be used by the commission in the manner selected by it which may include rate incentives or penalties so long as such are found to be fair and reasonable and result in a level of revenue which is fair and reasonable; and
      3. Use such other provisions which may be permitted by this chapter.
    2. When a formula type rate of return evaluation rate with periodic revenue adjustments is adopted by the commission, each periodic revenue adjustment will be separately considered for the purpose of determining whether a hearing is required pursuant to Section 77-3-39(1), and no such hearing shall be required if the amount of any separate periodic adjustment to the level of revenues of the utility is not a “major change” as defined in Section 77-3-37(8).
    3. In administering any such formula type rate of return evaluation rate, the following procedures shall be observed by the commission:
      1. Each periodic evaluation shall be supported with a sworn filing by the utility incorporating the data specified in the formula rate adopted by the commission, and such data shall be verified by the commission; and
      2. A hearing shall be required, as provided by law, to determine compliance with the formula rate plan and the accuracy of the data prior to any change in the level of revenues if the cumulative change in any calendar year exceeds the greater of Two Hundred Thousand Dollars ($200,000.00) or four percent (4%) of the annual revenues of the utility.
    4. The requirements of paragraphs (a), (b) and (c) of this subsection and other applicable provisions of Title 77, Chapter 3, Article 1, Mississippi Code of 1972, which are observed by the commission in administering such rate, are hereby declared to be procedural but are not required to be included in the rate itself.
  3. It is the intention of the Legislature to validate, retroactively to its initial adoption by the commission, any formula type rate, including any revenue adjustments effected pursuant thereto, which has heretofore been adopted by the commission. For the purposes of the retroactive validation and the administration of any formula type rate heretofore adopted by the commission, should the provisions of Title 77, Chapter 3, Article 1, Mississippi Code of 1972, conflict with any provisions of such formula type rate, Title 77, Chapter 3, Article 1, Mississippi Code of 1972, shall be interpreted to prevail and the formula type rate shall hereafter be administered or revised to conform to Title 77, Chapter 3, Article 1, Mississippi Code of 1972; provided, however, such conflict, if any, shall not be held to invalidate the retroactive effect of this section upon such rate.

HISTORY: Laws, 1983, ch. 467, § 3; Laws, 1989, ch. 304, § 1; Laws, 1990 Ex Sess, ch. 48, § 1; Laws, 2015, ch. 360, § 2, eff from and after July 1, 2015.

Amendment Notes —

The 2015 amendment added (1)(i), and made a related stylistic change.

Cross References —

Applicability of the policy objectives identified in this section to generation and transmission cooperatives, see §77-5-256.

JUDICIAL DECISIONS

1. In general.

The Mississippi Public Service Commission has the duty, authority, and therefore jurisdiction, over public utilities who come into the state of Mississippi and attempt to invoke the statutory right of eminent domain. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A New York corporation which provided long distance telephone service across the country was required to comply with state law and, as a condition precedent to the exercise of the statutory right of eminent domain pursuant to §77-9-717, to submit to the jurisdiction of the Mississippi Public Service Commission and obtain the following: (1) a determination that the telephone company qualified as an entity to which the legislature had granted the power of eminent domain pursuant to §§11-27-1 and77-9-717; (2) a determination that the telephone company had complied with state law in invoking the statutory power of eminent domain; and (3) a certificate of public convenience and necessity for the particular taking in question. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

RESEARCH REFERENCES

Law Reviews.

1989 Mississippi Supreme Court Review: Mississippi Public Service Commission. 59 Miss. L. J. 792.

§ 77-3-3. Definitions.

As used in this chapter:

The term “corporation” includes a private or public corporation, a municipality, an association, a joint-stock association or a business trust.

The term “person” includes a natural person, a partnership of two (2) or more persons having a joint or common interest, a cooperative, nonprofit, limited dividend or mutual association, a corporation, or any other legal entity.

The term “municipality” includes any incorporated city, town or village.

The term “public utility” includes persons and corporations, or their lessees, trustees and receivers now or hereafter owning or operating in this state equipment or facilities for:

The generation, manufacture, transmission or distribution of electricity to or for the public for compensation;

The transmission, sale, sale for resale, or distribution of natural, artificial, or mixed natural and artificial gas to the public for compensation by means of transportation, transmission, or distribution facilities and equipment located within this state; however, the term shall not include the production and gathering of natural gas, the sale of natural gas in or within the vicinity of the field where produced, or the distribution or sale of liquefied petroleum gas or the sale to the ultimate consumer of natural gas for use as a motor vehicle fuel;

The transmission, conveyance or reception of any message over wire, of writing, signs, signals, pictures and sounds of all kinds by or for the public, where such service is offered to the public for compensation, and the furnishing, or the furnishing and maintenance, of equipment or facilities to the public, for compensation, for use as a private communications system or part thereof; however, no person or corporation not otherwise a public utility within the meaning of this chapter shall be deemed such solely because of engaging in this state in the furnishing, for private use as last aforementioned, and moreover, nothing in this chapter shall be construed to apply to television stations, radio stations, community television antenna services, video services, voice over Internet protocol services (“VoIP”), any wireless services including commercial mobile services, Internet protocol (“IP”) - enabled services or broadband services; and

The transmission, distribution, sale or resale of water to the public for compensation, or the collection, transmission, treatment or disposal of sewage, or otherwise operating a sewage disposal service, to or for the public for compensation.

The term “public utility” shall not include any person not otherwise a public utility, who furnishes the services or commodity described in this paragraph only to himself, his employees or tenants as an incident of such employee service or tenancy, if such services are not sold or resold to such tenants or employees on a metered or consumption basis other than the submetering authorized under Section 77-3-97.

A public utility’s business other than of the character defined in subparagraphs (i) through (iv) of this paragraph is not subject to the provisions of this chapter.

The term “rate” means and includes every compensation, charge, fare, toll, customer deposit, rental and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or classification; however, the term “rate” shall not include charges for electrical current furnished, delivered or sold by one public utility to another for resale.

The word “commission” shall refer to the Public Service Commission of the State of Mississippi, as now existing, unless otherwise indicated.

The term “affiliated interest” or “affiliate” includes:

Any person or corporation owning or holding, directly or indirectly, twenty-five percent (25%) or more of the voting securities of a public utility;

Any person or corporation in any chain of successive ownership of twenty-five percent (25%) or more of the voting securities of a public utility;

Any corporation of which fifteen percent (15%) or more of the voting securities is owned or controlled, directly or indirectly, by a public utility;

Any corporation twenty-five percent (25%) or more of the voting securities of which is owned or controlled, directly or indirectly, by any person or corporation that owns or controls, directly or indirectly, twenty-five percent (25%) or more of the voting securities of any public utility or by any person or corporation in any chain of successive ownership of twenty-five percent (25%) of such securities;

Any person who is an officer or director of a public utility or of any corporation in any chain of successive ownership of fifteen percent (15%) or more of voting securities of a public utility; or

Any person or corporation that the commission, after notice and hearing, determines actually exercises any substantial influence or control over the policies and actions of a public utility, or over which a public utility exercises such control, or that is under a common control with a public utility, such control being the possession, directly or indirectly, of the power to direct or cause the discretion of the management and policies of another, whether such power is established through ownership of voting securities or by any other direct or indirect means.

However, the term “affiliated interest” or “affiliate” shall not include a joint agency organized pursuant to Section 77-5-701 et seq. nor a member municipality thereof.

The term “facilities” includes all the plant and equipment of a public utility, used or useful in furnishing public utility service, including all real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished or supplied for, by or in connection with its public utility business.

The term “cost of service” includes operating expenses, taxes, depreciation, net revenue and operating revenue requirement at a claimed rate of return from public utility operations.

The term “lead-lag study” includes an analysis to determine the amount of capital which investors in a public utility, the rates of which are subject to regulation under the provisions of this chapter, must provide to meet the day-to-day operating costs of the public utility prior to the time such costs are recovered from customers, and the measurement of (i) the lag in collecting from the customer the cost of providing service, and (ii) the lag in paying the cost of providing service by the public utility.

The term “broadband services” means any service that consists of or includes a high-speed access capability to transmit at a rate that is not less than two hundred (200) kilobits per second either in the upstream or downstream direction and either:

Is used to provide access to the Internet, or

Provides computer processing, information storage, information content or protocol conversion, including any service applications or information service provided over such high-speed access service.

The term “video services” means video programming services without regard to delivery technology, including Internet protocol technology (“Internet Protocol television or IPTV”) and video programming provided as a part of a service that enables users to access content, information, email or other services offered over the public Internet. The term “video programming” means any programming as defined in 47 USCS Section 522(20).

The term “Voice over Internet Protocol services” or “VoIP services” means any service that: (i) enables real-time, two-way voice communications that originate from or terminate to the user’s location in Internet protocol or any successor protocol; (ii) uses a broadband connection from the user’s location; and (iii) permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.

The term “commercial mobile services” means any services as defined in 47 USCS Section 332(d).

The term “Internet protocol-enabled services” or “IP-enabled services” means any service, capability, functionality, or application provided using Internet protocol, or any successor protocol, that enables an end user to send or receive a communication in Internet protocol format, or any successor format, regardless of whether the communications is voice, data or video.

Nothing contained in this paragraph shall apply to retail services that are tariffed by the commission.

HISTORY: Codes, 1942, § 7716-01; Laws, 1956, ch. 372, § 1; Laws, 1968, ch. 502, § 1; Laws, 1983, ch. 467, § 4; Laws, 1988, ch. 310, § 1; Laws, 1990, ch. 530, § 41; Laws, 1993, ch. 304, § 1; Laws, 2002, ch. 513, § 2; Laws, 2005, ch. 305, § 1; Laws, 2012, ch. 447, § 1, eff from and after July 1, 2012; Laws, 2018, ch. 368, § 1, eff from and after passage (approved March 16, 2018).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Amendment Notes —

The 2002 amendment in the second paragraph of (d)(iv) added language beginning “other than the submetering” following “consumption basis” and deleted “(d)” following “paragraph” in the second and third paragraphs; in the second paragraph of (g)(vi), deleted “Provided” at the beginning and “as now or hereafter amended” following “77-5-701 et seq.”

The 2005 amendment added “or broadband services” at the end of (d)(iii); added (k); and made minor stylistic changes.

The 2012 amendment in (d)(iii), deleted “or by radio, or otherwise” preceding “of writing, signs, signals, pictures” near the beginning of the paragraph, and inserted language beginning “video services, voice over Internet protocol services” and ending “Internet protocol (“IP”) - enabled services” at the end of the paragraph; and added ( l ) through (o).

The 2018 amendment, effective March 16, 2018, inserted “customer deposit” near the beginning of (e).

Cross References —

Tax levied under City Utility Tax Law on telephone or communication utilities as defined in subparagraph (3) of paragraph (d) of this section, see §21-33-203.

Exemption of nuclear fuel and its byproducts from ad valorem taxes, see §27-31-1.

Application of article to municipal public utilities, see §77-3-1.

Requirement of certificate of public convenience and necessity for operation of public utility, see §77-3-11.

Certificate of public convenience and necessity, as related to regulated utilities, see §77-3-13.

Authority of the commission to determine that the rates and charges for telecommunication services as defined in this section shall not be subject to regulation, see §77-3-35.

Authority of commission to adopt alternative methods of rate regulation proposed by utilities of the type defined in this section, see §77-3-35.

Direct appeals to supreme court from decisions of public service commission involving filings for rate changes by certain public utilities, see §77-3-72.

Tax on gross revenues of public utilities to defray personnel and other expenses of public service commission, see §77-3-87.

Applicability of the definitions provided in this section to generation and transmission cooperatives, see §77-5-256.

Sale by the Municipal Gas Authority of Mississippi to a customer of a public utility, see §77-6-65.

Civil penalties upon person operating public utility as defined in subparagraph (2) of paragraph (d) of this section in violation of any Natural Gas Pipeline Safety Standard, see §77-11-3.

Junk dealers being required to keep records of certain purchases, see §97-17-71.

Applicability of provision prohibiting transportation of certain materials out of the state under certain circumstances, see §97-17-71.

JUDICIAL DECISIONS

1. In general.

2. Rate-making, generally.

3. “Rate.”

1. In general.

Publisher was unable to obtain the amount that a utility charged a third party because the information was exempt from disclosure as confidential under Miss. Code Ann. §79-23-1; the utility had followed the procedures to protect the document under Miss. Code Ann. §25-61-9(1) and Miss. Pub. Serv. Comm’n R. Prac. & P. 4D, 4I; moreover, the amount charged did not meet the definition of rate under Miss. Code Ann. §77-3-3(e) because it was a privately negotiated agreement. Gannett River States Publ. Co. v. Entergy Miss., Inc., 940 So. 2d 221, 2006 Miss. LEXIS 447 (Miss. 2006).

Privately owned single customer natural gas pipeline companies, which did not sell to the public, did not hold certificates of public convenience and necessity from the Public Service Commission, and were not required to obtain any other franchise, license or certificate from the State of Mississippi in order to construct or operate their pipelines, were not “public service corporations” within the meaning of Mississippi Constitution Article 4, § 112 and §§27-35-301 et seq. Mississippi State Tax Com. v. Moselle Fuel Co., 568 So. 2d 720, 1990 Miss. LEXIS 579 (Miss. 1990).

A company which leases a community repeater to users licensed by the FCC under its Part 91 private Business Radio Service is not making an offering to the public for hire and therefore is not a public utility within meaning of § Motorola Communications & Electronics, Inc. v. Mississippi Public Service Com., 515 F. Supp. 793, 1979 U.S. Dist. LEXIS 8051 (S.D. Miss. 1979), aff'd, 648 F.2d 1350, 1981 U.S. App. LEXIS 12720 (5th Cir. Miss. 1981).

The Mississippi Public Service Commission’s application of §77-3-3 to a company operating a community repeater constitutes an illegal attempt to usurp jurisdiction to regulate communication activity that is pre-empted by the Motorola Communications & Electronics, Inc. v. Mississippi Public Service Com., 515 F. Supp. 793, 1979 U.S. Dist. LEXIS 8051 (S.D. Miss. 1979), aff'd, 648 F.2d 1350, 1981 U.S. App. LEXIS 12720 (5th Cir. Miss. 1981).

2. Rate-making, generally.

Mississippi Public Service Commission (MPSC) lacks statutory authority to adopt any rule regulating the rates of nonprofit water utility associations and corporations. Accordingly, MPSC lacked authority to adopt a rule requiring utilities to waive utility deposits for certified domestic violence victims for a period of 60 days. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

Definition of “rate” encompasses the typical usage of the term “rate,” the unit cost of a service supplied to the public by a utility, and the “formula or method” by which the compensation is determined; when read in conjunction with this definition, Miss. Code Ann. §77-3-5 prohibits the Mississippi Public Service Commission from regulating the amounts charged by nonprofit public utilities and the formula used to calculate that amount and any rules or regulations related to this process. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

Mississippi Public Service Commission (MPSC), which adopted a rule requiring utilities to waive utility deposits for certified domestic violence victims, did not have statutory authority to regulate the rates of nonprofit water associations because the Public Utilities Act included customer deposits in the definition of the term “rate,” prohibited the MPSC from making rules that regulated the rates of a rural water association’s members. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

Mississippi Public Service Commission (PSC) properly denied a telecommunications company’s requested rate increase for telephone services on the ground that the company failed to provide evidence that the rate increase was just and reasonable pursuant to Miss. Code Ann. §77-3-33(1) because the PSC’s interpretation of Miss. Code Ann. §77-3-35(4) was consistent with the plain language of the statute, and the PSC retained full regulatory authority over switched access service and single-line flat rate voice communication service; if a “retail rate” was somehow different from a tariff “rate,” as the company suggested, it was a distinction without a difference. Miss. Code Ann. §77-3-3(e) (Rev. 2000) included all forms of rates within its definition. Bellsouth Telcomms. v. Miss. PSC, 18 So.3d 199, 2009 Miss. LEXIS 378 (Miss. 2009).

3. “Rate.”

In the case of a billing error by an electric company, the circuit court did not err in denying the customer’s motion to stay the proceedings and by holding that the Mississippi Public Service Commission lacked jurisdiction because the circuit court correctly classified the dispute as one involving rates as the electric company’s failure to apply the correct multiplier to the customer’s account pertained to the formula or method by which its charges could be determined; and because the electric company sought compensation for a charge related to a service, product, or commodity it supplied the customer. Door Shop, Inc. v. Alcorn Cty. Elec. Power Ass'n, 261 So.3d 1099, 2018 Miss. LEXIS 443 (Miss. 2018), modified, — So.3d —, 2019 Miss. LEXIS 60 (Miss. 2019).

RESEARCH REFERENCES

ALR.

State regulation of radio paging services. 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.

§ 77-3-5. Jurisdiction and powers of commission.

Notwithstanding any other provision of law, and subject only to the limitations imposed in this chapter and in accordance with the provisions of this chapter, the Public Service Commission shall have exclusive original jurisdiction over the intrastate business and property of public utilities and, for purposes of clarification of the existing scope of said exclusive original jurisdiction, such exclusive original jurisdiction extends, but is not limited to: the establishment of retail rates; challenges, including customer complaints, to the amount of a retail rate or customer bill or whether such rate is just and reasonable; and challenges to the validity or accuracy of rates charged by a public utility, or to the accuracy or reliability of information submitted to the Public Service Commission by a public utility or other person in support of or in opposition to a proposed or approved rate, regardless of the legal theory upon which any such challenge is made. However, the commission shall not have jurisdiction over the production and gathering of natural gas or the sale of natural gas in or within the vicinity of the field where produced, or over the facilities and equipment utilized in any such operations, including, but not limited to, such facilities as separators, scrubbers and gasoline plants of all types. Further, the commission shall not have jurisdiction over the governance, management or other internal affairs of entities as described by paragraphs (b) and (c) below. Moreover, the commission shall not have jurisdiction to regulate the rates for the sales and/or distribution:

Of gas, water, electricity or sewage disposal services by municipalities to such persons as said municipalities are authorized by law to serve;

Of gas or electricity by cooperative gas or electric power associations to the members thereof as consumers, except as provided by Section 77-3-17, where service is rendered in a municipality;

Of water or sewage disposal service by nonprofit corporations or associations where the governing body of such corporation or association is elected by the consumers thereof or appointed by the county board of supervisors; or

Of water by districts organized under the provisions of Chapter 45, Laws of 1966-1967, Extraordinary Session.

HISTORY: Codes, 1942, § 7716-04; Laws, 1956, ch. 372, § 4; Laws, 1966, ch. 542, § 1; Laws, 1968, ch. 503, § 1; ch. 502, § 2; Laws, 2013, ch. 321, § 2; Laws, 2013, ch. 526, § 1; Laws, 2015, ch. 310, § 1, eff from and after passage (approved Mar. 13, 2013); Laws, 2018, ch. 402, § 24, eff from and after July 1, 2018.

Joint Legislative Committee Note —

Section 2 of ch. 321, Laws of 2013, effective from and after passage (approved March 7, 2013), amended this section. Section 2 of ch. 526, Laws of 2013, effective from and after July 1, 2013 (approved April 23, 2013), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 526, Laws of 2013, which contains language that specifically provides that it supersedes §77-3-5 as amended by ch. 321, Laws of 2013.

Amendment Notes —

The first 2013 amendment (ch. 321) added “and/or distribution” at the end of the last sentence of the introductory paragraph; substituted “Section 77-3-17” for “Sections 77-3-15 and 77-3-17” in (b); and made minor stylistic changes.

The second 2013 amendment (ch. 526), in the first paragraph, added the next-to-last sentence, and added “and/or distribution” to the end; and substituted “Section 77-3-17” for “Sections 77-3-15 and 77-3-17” in (b).

The 2015 amendment substituted “paragraphs (b) and (c) below” for “paragraph (c) below” in the next-to-last sentence of the undesignated paragraph.

The 2018 amendment rewrote the first sentence of the introductory paragraph, which read: “Subject to the limitations imposed in this article and in accordance with the provisions hereof, the Public Service Commission shall have exclusive original jurisdiction over the intrastate business and property of public utilities.”

Cross References —

Regulatory duties of the Commission with respect to joint water management districts, see §51-8-31.

Power of the commission to consider and adopt a formula type rate of return evaluation rate, see §77-3-2.

Regulation of generation and transmission cooperatives, see §77-5-256.

Regulation of intrastate gas pipelines serving industrial users or public utilities, see §§77-11-301 et seq.

Public access to records supplied by public utilities, see §79-23-1.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

1. In general.

Mississippi Public Service Commission (MPSC) lacks statutory authority to adopt any rule regulating the rates of nonprofit water utility associations and corporations. Accordingly, MPSC lacked authority to adopt a rule requiring utilities to waive utility deposits for certified domestic violence victims for a period of 60 days. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

Definition of “rate” encompasses the typical usage of the term “rate,” the unit cost of a service supplied to the public by a utility, and the “formula or method” by which the compensation is determined; when read in conjunction with this definition, Miss. Code Ann. §77-3-5 prohibits the Mississippi Public Service Commission from regulating the amounts charged by nonprofit public utilities and the formula used to calculate that amount and any rules or regulations related to this process. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

Mississippi Public Service Commission (MPSC), which adopted a rule requiring utilities to waive utility deposits for certified domestic violence victims, did not have statutory authority to regulate the rates of nonprofit water associations because the Public Utilities Act included customer deposits in the definition of the term “rate,” prohibited the MPSC from making rules that regulated the rates of a rural water association’s members. Miss. Rural Water Ass'n v. Miss. PSC, 222 So.3d 288, 2017 Miss. LEXIS 234 (Miss. 2017).

The public service commission had jurisdiction to settle a dispute regarding whether an agreement between the parties conveyed to the defendant city only that portion of a tract to be utilized as a shopping mall or the right to take the entire tract. Arnold Line Water Ass'n v. Mississippi PSC, 744 So. 2d 246, 1999 Miss. LEXIS 116 (Miss. 1999).

Only the Mississippi Public Service Commission may initially decide a matter relating to the regulation of intrastate public utility activity; thus, a circuit court had no jurisdiction to decide that a shopping mall had improperly acted as a public utility. Singing River Mall Co. v. Mark Fields, Inc., 599 So. 2d 938, 1992 Miss. LEXIS 135 (Miss. 1992).

The Mississippi Public Service Commission has the duty, authority, and therefore jurisdiction, over public utilities who come into the state of Mississippi and attempt to invoke the statutory right of eminent domain. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A New York corporation which provided long distance telephone service across the country was required to comply with state law and, as a condition precedent to the exercise of the statutory right of eminent domain pursuant to §77-9-717, to submit to the jurisdiction of the Mississippi Public Service Commission and obtain the following: (1) a determination that the telephone company qualified as an entity to which the legislature had granted the power of eminent domain pursuant to §§11-27-1 and77-9-717; (2) a determination that the telephone company had complied with state law in invoking the statutory power of eminent domain; and (3) a certificate of public convenience and necessity for the particular taking in question. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The Public Service Commission’s (PSC) adoption of a performance evaluation plan for determining a power company’s rates through a formula that was subject to quarterly adjustments of costs of utility services based on revenue and expense figures supplied by the utility violated the state’s public policy and statutory scheme because the plan was a complete abrogation by the PSC of its statutory responsibilities and a relinquishment of control to the very entity the PSC is charged by law to regulate. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 367, 1989 Miss. LEXIS 12 (Miss. 1989).

Terms of contract between telephone company and its subscribers are supplied by tariffs which have been duly filed and approved by Mississippi Public Service Commission, and claim alleging wrongful disconnection of telephone services must necessarily involve breach of subscriber’s tariff or contract. South Cent. Bell v. Epps, 509 So. 2d 886, 1987 Miss. LEXIS 2594 (Miss. 1987).

The public service commission has general jurisdiction and extensive regulatory powers over public utilities. Capital Electric Power Asso. v. Mississippi Power & Light Co., 216 So. 2d 428, 1968 Miss. LEXIS 1229 (Miss. 1968).

The legislation establishing the public service commission does not empower it to regulate the rates of an interstate pipeline company for direct sales of natural gas for industrial use. Texas Gas Transmission Corp. v. Mississippi Public Service Com., 241 Miss. 826, 133 So. 2d 526, 1961 Miss. LEXIS 407 (Miss. 1961).

2. Jurisdiction.

In the case of a billing error by an electric company, the circuit court did not err in denying the customer’s motion to stay the proceedings and by holding that the Mississippi Public Service Commission lacked jurisdiction because the circuit court correctly classified the dispute as one involving rates as the electric company’s failure to apply the correct multiplier to the customer’s account pertained to the formula or method by which its charges could be determined; and because the electric company sought compensation for a charge related to a service, product, or commodity it supplied the customer. Door Shop, Inc. v. Alcorn Cty. Elec. Power Ass'n, 261 So.3d 1099, 2018 Miss. LEXIS 443 (Miss. 2018), modified, — So.3d —, 2019 Miss. LEXIS 60 (Miss. 2019).

OPINIONS OF THE ATTORNEY GENERAL

Since interstate pipeline companies do not come within the jurisdiction or supervision of the Public Service Commission, these companies or their representatives may legally make campaign contributions to Public Service Commissioners or candidates for Public Service Commissioner. See Section 77-1-11. Hebert, December 6, 1995, A.G. Op. #95-0768.

Senate Bill 3009, enrolled as Chapter 884, Local and Private Laws of Mississippi, 1988 does not exempt that portion of the City of Pontotoc gas utility system that extends more than one mile from the City of Pontotoc corporate limits from full regulation by the Mississippi Public Service Commission (MPSC), including the regulation of rates by the MPSC. McKinley, August 27, 1999, A.G. Op. #99-0437.

RESEARCH REFERENCES

ALR.

Community antenna television systems (CATV) as subject to jurisdiction of state public utility or service commission. 61 A.L.R.3d 1150.

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 145, 146, 151.

CJS.

73B C.J.S., Public Utilities §§ 295, 296, 302-304, 305 et seq.

§ 77-3-6. Investigations and arbitration of billing and services between public utilities and customers.

  1. Any dispute between a municipally-owned or operated public utility and a customer of such public utility with regard to billing and/or services in excess of Two Thousand Five Hundred Dollars ($ 2,500.00) shall be subject to investigation, review and arbitration by the commission upon petition filed therefor with the commission by such public utility or customer. However, the commission shall not commence any investigation or proceedings pursuant to such petition if at the time of filing the petition suit has been filed in any court of this state or of the United States with regard to the subject matter of the dispute and in which such public utility and customer are parties. Any such petition shall be immediately dismissed if any such suit is filed after filing of the petition with the commission.
  2. In any arbitration proceedings commenced under the provisions of this section, the commission may, by order entered on its minutes and delivery of a certified copy thereof to the public utility, direct any municipally-owned or operated public utility to provide the commission with copies of all statements, accounts and reports concerning operation of the public utility which the utility is required to provide the governing authorities of the municipality under Section 21-27-17. The commission is further authorized to conduct and shall conduct investigation of and informal hearings in the dispute and may negotiate with the public utility and the customer for the resolution thereof. In every arbitration proceeding under this section the commission shall perform such duties as it deems reasonable and likely to result in settlement of the dispute without commencement of litigation between the public utility and the customer.
  3. Participation in any investigation, proceeding, negotiation, or settlement under the provisions of this section shall be voluntary by the public utility and the customer; however, no suit may be commenced in any court of this state by either the public utility or customer based upon the facts giving rise to the dispute for a period of sixty (60) days after a petition is filed with the commission under this section.
  4. The provisions prescribed herein for the Public Service Commission to investigate, review and arbitrate disputes between a municipally-owned or operated public utility and a customer of such public utility shall not extend to tort actions.

HISTORY: Laws, 1990, ch. 455, § 1, eff from and after July 1, 1990.

Cross References —

Furnishing copies of quarterly and annual reports to public service commission, see §21-27-17.

Reports to Public Service Commission by municipal public utility commissions, see §21-27-17.

Billing and service disputes between municipal-owned utilities subject to review and arbitration by public service commission, see §21-27-29.

§ 77-3-7. Bonding of commission employees; preference for full-time employees; additional personnel.

  1. The commission may require such bonds to be carried on its employees as the commission may deem necessary, the cost thereof to be paid by the commission. Insofar as possible to do so, personnel of the commission shall be retained on a full-time basis and shall have no other employment of any kind. As to any part-time or specially employed person, the minutes of the commission shall recite the necessity for deviation from full-time employment.
  2. Nothing in this section should be interpreted to prevent the commission from utilizing the services of these additional personnel herein provided in rendering assistance to the commission in its other duties where such assignment does not interfere with duties in administering the provisions of this chapter.

HISTORY: Codes, 1942, § 7716-02; Laws, 1956, ch. 372, § 2; Laws, 1983, ch. 467, § 5; Laws, 1990, ch. 530, § 34, eff from and after July 1, 1990.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Appointment by commission of executive secretary, see §77-1-15.

Employment by commission of rate expert and assistant rate expert, see §77-1-17.

Employment by commission of personnel to carry out and enforce Motor Carrier Regulatory Law, see §§77-1-19,77-1-21.

Public Utilities Staff, see §§77-2-1 et seq.

§ 77-3-8. Public service commission staff; Personnel Board to establish salaries; duties of staff; funding of agency expenses; deposit of monies into State General Fund.

  1. There is established in the commission a Public Service Commission staff, which staff shall be a unit, remain as a unit therein, and be responsive to the commission. The Public Service Commission staff shall consist of a sufficient number of professional, administrative, technical, clerical and other personnel as may be necessary for the staff to perform its duties and responsibilities as hereinafter provided. All such personnel of the Public Service Commission staff shall be recommended by the executive secretary and hired or rejected by the commission. Personnel shall be dismissed only for cause in accordance with the rules and regulations of the State Personnel Board. The personnel of the Public Service Commission staff shall be compensated and reimbursed for their actual and necessary expenses, including food, lodging and travel, by the commission from the Public Service Commission Regulation Fund established by Section 77-1-6, and as authorized by Section 25-3-41. The Public Service Commission staff shall be responsible for gathering and analyzing information relating to all matters within the authority of the commission.
  2. The State Personnel Board shall establish and maintain entry-level salaries sufficiently competitive to attract competent, qualified applicants for the specialized skills and positions required by this section without regard to the salaries paid the commissioners and notwithstanding any other provisions of law to the contrary. The State Personnel Board shall authorize, where necessary, a range of salaries within which salary negotiations may be conducted for those positions for which specific knowledge, skills and abilities are set forth herein.
  3. The Public Service Commission staff shall perform such duties as are assigned to them by the commission.
  4. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  5. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1983, ch. 467, § 6; Laws, 1987, ch. 343, § 5; Laws, 1990, ch. 530, § 35; Laws, 2016, ch. 459, § 53, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2016 amendment added (4) and (5).

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Public utilities staff formerly authorized under this section, see §77-2-1.

Abolition of public utilities staff as formerly created in this section and former employees eligible for re-hire for positions created pursuant to §77-2-1, see §77-2-9.

Personnel in addition to public utilities staff provided by this section, see §77-3-7.

Attorney for public service commission not being or exercising duties of general counsel for public utilities staff, see §77-3-9.

§ 77-3-9. Attorney for public service commission.

The Public Service Commission shall appoint an attorney who shall assist and advise the commission in all matters affecting its powers and duties and to perform such duties and services in connection with this chapter and the enforcement thereof as the commission may require. Such attorney shall be a member of the Mississippi State Bar, shall have practiced law for a minimum of five (5) years and shall possess considerable knowledge of utility regulation generally and of the case law, statutory law and the common law relating thereto. The attorney for the commission shall, upon request of the commission, aid in any investigation or hearing held under the provisions of this chapter. His salary shall be set by the commission, and his salary and expenses shall be paid in the same manner and from the same funds as the salary and expenses of the commissioners.

HISTORY: Codes, 1942, § 7716-03; Laws, 1956, ch. 372, § 3; Laws, 1983, ch. 467, § 7; Laws, 1990, ch. 530, § 36, eff from and after July 1, 1990.

Joint Legislative Committee Note —

Joint Legislative Committee Note- Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the second sentence. The word “who” was deleted preceding “shall possess considerable knowledge.” The Joint Committee ratified the correction at its July 22, 2010, meeting.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Assistant attorneys general generally, see §7-5-5.

Duty of attorney general to assist and advise commission generally, see §7-5-49.

General counsel for public utilities staff, see §77-3-8.

RESEARCH REFERENCES

Law Reviews.

1982 Mississippi Supreme Court Review: Administrative Law: Intervention by Mississippi’s Attorney General on Behalf of the Public. 53 Miss. L. J. 123.

§ 77-3-10. Regulated utilities to file with commission copies of contracts with affiliates; authority of commission to disallow certain payments as operating costs.

  1. All public utilities, the rates of which are subject to regulation under the provisions of this chapter, shall file with the commission copies of contracts, wherein the consideration therefor is One Million Dollars ($1,000,000.00) or more, with any holding, managing, operating, constructing, engineering or purchasing company, which is an affiliate of or a subsidiary of, such public utility, and when requested by the commission, copies of such contracts wherein the consideration therefor is less than One Million Dollars ($1,000,000.00) and copies of contracts with any person selling service of any kind. The commission may, after hearing on reasonable notice, disallow any payment to be capitalized or included as an operating cost of the public utility in the fixing of rates or as an asset in fixing a rate base under any such contract if it is found by the commission to be unjust or unreasonable, or made for the purpose or with the effect of concealing, unreasonably transferring or unreasonably dissipating the earnings of the public utility. Provided, however, that in the case of a public utility with fewer than twenty-five thousand (25,000) customers, this subsection shall apply only to such contracts as the commission shall request such public utility to file.
  2. No public utility as described in subsection (1) of this section shall pay any fees, commission or compensation of any description whatsoever to any affiliated or subsidiary holding, managing, operating, constructing, engineering or purchasing company for services rendered or to be rendered without first filing copies of all agreements and contracts therefor with the commission. The commission may, after hearing on reasonable notice, disallow any such payment to be capitalized or included as an operating cost of the public utility in the fixing of rates or as an asset in fixing a rate base under such agreement or contract if it is found by the commission to be unjust or unreasonable. Provided, however, that this subsection shall not apply to motor carriers of passengers.
  3. The public service commission staff, upon direction of the commission, shall have full power and authority to investigate any such contract, arrangement, purchase or sale, and no payment disallowed by the commission shall be capitalized or included as an operating cost of the public utility in the fixing of rates or as an asset in fixing a rate base. If, in any such investigation, the public utility or affiliate shall unreasonably refuse to comply with any request of the commission for information with respect to relevant accounts and records, whether of such public utility or any affiliate, any portion of which may be applicable to any transaction under investigation, so that such parts thereof as the commission may deem material may be made part of the record, such refusal shall justify the commission in disapproving the transaction under investigation and disallowing payments in pursuance thereof, to be capitalized or included as an operating cost of the public utility in the fixing of rates or as an asset in fixing a rate base.

HISTORY: Laws, 1983, ch. 467, § 8; Laws, 1990, ch. 530, § 37, eff from and after July 1, 1990.

§ 77-3-11. Certificate of public convenience and necessity required; exceptions; complaints prompting hearing as to adequacy of service.

  1. No person shall construct, acquire, extend or operate equipment for manufacture, mixing, generating, transmitting or distributing natural or manufactured gas, or mixed gas, or water, for any intrastate sale to or for the public for compensation, or for the operation of a public utility operating a business and equipment or facilities as contemplated by subparagraph (iii) of paragraph (d) of Section 77-3-3, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require the operation of such equipment or facility.
  2. No person shall construct, acquire, extend or operate equipment for manufacture, generating, transmitting or distributing electricity for any intrastate or interstate sale to or for the public for compensation without first having obtained from the commission a certificate that the present and future public convenience and necessity require or will require the operation of such equipment or facility. Provided, however, nothing herein contained shall be construed to require a joint municipal electric power agency organized in accordance with the provisions of Section 77-5-201 et seq., Mississippi Code of 1972, to obtain any permit, license, certificate or approval from the Mississippi Public Service Commission.
  3. No person shall construct, acquire, extend or operate equipment or facilities for collecting, transmitting, treating or disposing of sewage, or otherwise operating an intrastate sewage disposal service, to or for the public for compensation, without first having obtained from the commission a certificate that the present or future public convenience and necessity require or will require the operation of such equipment or facilities.
  4. However, nothing herein shall be construed to require any certificate of convenience and necessity from the commission for the production and gathering of natural gas, the sale of natural gas in or within the vicinity of the field where produced, the distribution or sale of liquefied petroleum gas, the sale of natural gas to the ultimate consumer for use as a motor vehicle fuel, or for the facilities and equipment utilized in any such operations.
  5. Upon complaints filed by not less than ten percent (10%) of the total subscribers or three thousand five hundred (3,500) subscribers of a public utility, whichever is less, then the commission shall hold a hearing on the adequacy of service as contemplated in Section 77-3-21.

HISTORY: Codes, 1942, §§ 7716-05, 7716-45; Laws, 1956, ch. 372, § 5; Laws, 1968, ch. 502, § 3; Laws, 1983, ch. 467, § 9; Laws, 1985, ch. 446; Laws, 1990, ch. 530, § 38; Laws, 1993, ch. 304, § 2, eff from and after July 1, 1993.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Issuance of certificates of public convenience and necessity, see §77-3-13.

Requirement of certificate of public convenience and necessity for construction of facility for generating and transmitting electricity, see §77-3-14.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

Certificate of public convenience and necessity required of common carrier or restricted common carrier by motor vehicle, see §77-7-41.

JUDICIAL DECISIONS

1. In general.

Mississippi Public Service Commission did not err by failing to institute adequacy of service proceedings against a water, sewer, and fire district because a resident did not allege any inadequacy of service in his complaint to the Commission, and none of the other petitioners actually joined in the resident’s complaint to the Commission. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

The lack of customer requests for water service from a town did not preclude issuance of a certificate of public convenience and necessity to a water association to provide such service. Town of Enterprise v. Miss. PSC, 782 So. 2d 733, 2001 Miss. LEXIS 86 (Miss. 2001).

A New York corporation which provided long distance telecommunications across the country would be entitled to invoke the power of eminent domain if it proved that it was a telephone company constructing new lines which had taken the necessary corporate steps to invoke the power of eminent domain and had obtained a certificate of public convenience and necessity from the Mississippi Public Service Commission. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

The special court of eminent domain properly dismissed a condemnation petition brought by a New York corporation, which provided long distance telephone service across the country, for failure to first obtain a certificate of public convenience and necessity from the Mississippi Public Service Commission as a condition precedent to the exercise of eminent domain by a public utility. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

A New York corporation which provided long distance telephone service across the country was required to comply with state law and, as a condition precedent to the exercise of the statutory right of eminent domain pursuant to §77-9-717, to submit to the jurisdiction of the Mississippi Public Service Commission and obtain the following: (1) a determination that the telephone company qualified as an entity to which the legislature had granted the power of eminent domain pursuant to §§11-27-1 and77-9-717; (2) a determination that the telephone company had complied with state law in invoking the statutory power of eminent domain; and (3) a certificate of public convenience and necessity for the particular taking in question. American Tel. & Tel. Co. v. Purcell Co., 606 So. 2d 93, 1990 Miss. LEXIS 790 (Miss. 1990).

Privately owned single customer natural gas pipeline companies, which did not sell to the public, did not hold certificates of public convenience and necessity from the Public Service Commission, and were not required to obtain any other franchise, license or certificate from the State of Mississippi in order to construct or operate their pipelines, were not “public service corporations” within the meaning of Mississippi Constitution Article 4, § 112 and §§27-35-301 et seq. Mississippi State Tax Com. v. Moselle Fuel Co., 568 So. 2d 720, 1990 Miss. LEXIS 579 (Miss. 1990).

A certificated land line telephone company is required to obtain an additional certificate of convenience and necessity in order to render mobile dial radio telephone service. Keith v. Bay Springs Tel. Co., 251 Miss. 106, 168 So. 2d 728, 1964 Miss. LEXIS 332 (Miss. 1964).

The manifest policy of this legislation is to prevent duplicating and over-riding facilities and certificates. Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So. 2d 739, 1961 Miss. LEXIS 443 (Miss. 1961).

The effect of this section is to make the obtaining of a certificate of public convenience and necessity by a utility a condition of its exercise of the power of eminent domain. Mississippi Power & Light Co. v. Blake, 236 Miss. 207, 109 So. 2d 657, 1959 Miss. LEXIS 310 (Miss. 1959).

It cannot be said peremptorily that it is not necessary to obtain a permit under this section for construction work costing more than $35,000. Mississippi Power & Light Co. v. Coldwater, 234 Miss. 615, 106 So. 2d 375, 112 So. 2d 222, 1959 Miss. LEXIS 574 (Miss. 1959).

OPINIONS OF THE ATTORNEY GENERAL

If municipally owned plant, project or development, route, line or system or extension thereof is contemplated in area which has been certificated to another utility, certificate authorizing same must first be obtained from Mississippi Public Service Commission. Leslie, July 15, 1992, A.G. Op. #92-0512.

Since a certificate of public convenience and necessity granted by the Public Service Commission authorizes the intrastate sale of water to the public, the City of Southaven may provide water to a municipal fire station in the Pleasant Hill Water Association certificated area. Wise, September 25, 1998, A.G. Op. #98-0539.

RESEARCH REFERENCES

ALR.

Availability of judicial review under 15 USCS § 717r(b) of order of Federal Energy Regulatory Commission granting certificate of public convenience and necessity subject to condition. 47 A.L.R. Fed. 827.

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 9 et seq.

CJS.

37 C.J.S., Franchises §§ 18-20 et seq.

Law Reviews.

Evidence of Business Factors in Condemnation Proceedings Concerning Certificates of Public Convenience and Necessity. 52 Miss. L. J. 927.

§ 77-3-12. Certificate of public convenience and necessity grants exclusive right to public utility to provide services for which certificate issued; utility systems authorized to extend facilities through certificated area of another utility for purposes other than certificated need.

  1. A certificate of public convenience and necessity issued by the Public Service Commission authorizing public utility services to or for the public for compensation in an area grants an exclusive right to the public utility to provide that service in the certificated area.
  2. Nothing contained in subsection (1) of this section or any other provision of law shall prohibit any utility system from extending its system plant, lines or other facilities in or through the certificated area of another utility for purposes other than providing services to or for the public for compensation in such certificated area similar to those services provided by the certificated utility.

HISTORY: Laws, 2002, ch. 499, § 27, eff from and after passage (approved Apr. 1, 2002).

JUDICIAL DECISIONS

1. Groundwater withdrawal permits.

Mississippi Department of Environmental Quality Permit Board’s decision to grant groundwater withdrawal permits to a county utility authority did not violate a utility company’s rights because the permits did not allow the utility authority to sell in the company’s certificated area; the utility authority intended to expand its regional water system by building wells on land it owned in the company’s certificated area and selling water to customers outside of the company’s certificated area. Riverbend Utils., Inc. v. Miss. Envtl. Quality Permit Bd., 130 So.3d 1096, 2014 Miss. LEXIS 69 (Miss. 2014).

§ 77-3-13. Issuance of certificates; temporary certificates; cancelability review upon change of ownership.

  1. The commission shall issue a certificate of convenience and necessity to any person engaged in the construction or operation of such equipment or facility as is mentioned in subsection (1) of Section 77-3-11 on March 29, 1956, for the construction or operation then being conducted, without requiring proof that public convenience and necessity will be served by such construction or operation, and without further proceedings, if application for such certificate is made to the commission within six (6) months after March 29, 1956. Any utility covered by this chapter which has heretofore been under the jurisdiction of the commission shall, upon application within six (6) months of March 29, 1956, be issued a certificate authorizing it to conduct operations and make extensions within any area covered by its service area map or maps on file with the commission on March 29, 1956.
  2. The commission shall issue a certificate of convenience and necessity to any person engaged in the construction or operation of a sewage disposal service as mentioned in subsection (2) of Section 77-3-11 on August 9, 1968, for the construction or operation then being conducted, without requiring proof that public convenience and necessity will be served by such construction or operation, and without further proceedings, if application for such certificate is made to the commission within six (6) months after August 9, 1968. Pending the filing of such application and the issuance of a certificate, the continuance of such construction or operation shall be lawful.

    Except as otherwise specifically provided by subsection (2) of Section 77-3-11 or by this subsection, that portion of the business of a public utility dealing with the operation of a sewage disposal service as provided by subsection (2) of Section 77-3-11 shall be subject to provisions of this chapter, in like manner and with like effect as if such business had been included within the definition of a “public utility” in the original enactment of this chapter.

  3. In all other cases, the commission shall set the matter for hearing, and shall give reasonable notice of the hearing thereon to all interested persons, as in its judgment may be necessary under its rules and regulations, involving the financial ability and good faith of the applicant, the necessity for additional services and such other matters as the commission deems relevant. The commission may issue a certificate of public convenience and necessity, or refuse to issue the same or issue it for the establishment or construction of a portion only of the contemplated plant, route, line or system, or extension thereof, or for the partial exercise only of such right or privilege, and may attach to the exercise of the rights granted by the certificate such reasonable terms and conditions as to time or otherwise as, in its judgment, the public convenience, necessity and protection may require, and may forfeit such certificate after issuance for noncompliance with its terms, or provide therein for an ipso facto forfeiture of the same for failure to exercise the rights granted within the time fixed by the certificate. However, nothing in this section shall be construed as requiring such certificate for a municipally owned plant, project or development, route, line or system or extension thereof in areas within one (1) mile of the corporate boundaries which are not certificated to another utility, and nothing in this chapter or other provision of law shall be construed as allowing a municipally owned plant, project or development, route, line or system or extension thereof in areas certificated to another utility. No certificate shall be required for extensions or additions within the corporate limits of a municipality being served by the holder of a certificate of convenience and necessity.
  4. The commission shall, prior to issuing a certificate of public convenience and necessity to a public utility for any new construction, extension or addition to its property, ascertain that all labor, materials, property or services to be rendered for any proposed project will be supplied at reasonable prices. The commission shall, after issuance of a certificate for facilities estimated to cost Five Million Dollars ($5,000,000.00) or more or estimated to cost an amount equal to one percent (1%) of the rate base allowed by the commission in the utility’s last rate case, whichever is greater, assign the public utilities staff to monitor such projects, to inspect periodically construction in progress, and to report to the commission any variances or deviations as found, if any, and to file progress reports thereon with the commission. Such public utility shall file a similar report with the commission at such times and in such form as the commission shall require, including any substantial changes in plans and specifications, cost allocations, construction schedule and funds available to complete the project.
  5. The commission may issue a temporary certificate in cases of emergency, to assure maintenance of adequate service or to serve particular customers, without notice or hearing, pending the determination of an application for a certificate, and may by regulation exempt from the requirements of Sections 77-3-11 through 77-3-21: (a) temporary acts or operations for which the issuance of a certificate will not be required in the public interest; and (b) extensions or additions of service facilities outside of municipalities under such general rules as will promote the prompt availability of such service to prospective users, and at the same time prevent unnecessary and uneconomic duplication of such facilities as between two (2) or more persons.
  6. Prior to the acquisition pursuant to Section 77-3-17, or other provisions of law, by any public agency, authority, district, state or other agency, institution or political subdivision thereof, of any certificate of public convenience and necessity or portion thereof, service areas or portion thereof, or operating rights or portion thereof, issued or granted by the commission pursuant to the provisions of this section and/or the facilities or other properties and equipment of the utility providing service therein of any regulated utility, as defined in Section 77-3-3(d)(i), (ii) and (iii), the commission shall first determine if such service area, certificate of public convenience and necessity, or operating right, or portions thereof, should be cancelled as provided in Section 77-3-21.
  7. Before the acquisition pursuant to any negotiated purchase agreement entered into before 1987, by any public agency, authority, district, state or other agency, institution or political subdivision thereof, of any certificate of public convenience and necessity or portion thereof, service areas or portion thereof, or operating rights or portion thereof, issued or granted by the commission pursuant to this section and/or the facilities or other properties and equipment of the utility providing service therein of any regulated utility defined in Section 77-3-3(d)(i), the commission first shall determine that such service area, certificate of public convenience and necessity, or operating right, or portions thereof, shall be cancelled as provided in Section 77-3-21.
  8. Notwithstanding any provision of this section to the contrary, the certificate as applied for may be granted without a hearing in uncontested cases; however, the commission may hear any uncontested case if it determines that the public interest will be served thereby.

HISTORY: Codes, 1942, §§ 7716-05, 7716-45; Laws, 1956, ch. 372, § 5; Laws, 1968, ch. 502, § 3; Laws, 1983, ch. 467, § 10; Laws, 1987, ch. 353, § 2; Laws, 2002, ch. 303, § 1, eff from and after passage (approved Mar. 4, 2002).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Laws of 1987, ch. 353, § 1, effective March 17, 1987, provides as follows:

“SECTION 1. It is hereby found and declared that it is in the public interest of and beneficial to this state and its people, and in particular to the consumers and customers of regulated public utilities as defined in Section 77-3-3(d)(i),(ii) and (iii), Mississippi Code of 1972, that such customers and consumers be assured of continued adequacy of utility services.

“It is further found and declared that the Mississippi Public Service Commission is the public agency vested with the authority and jurisdiction over the regulation of public utilities and should exercise such jurisdiction and authority over utility services provided to the inhabitants and consumers of those service areas which have been included in certificates of public convenience and necessity and operating rights granted by said commission by exercising the authority heretofore granted to said commission by this Legislature with regard to the cancellation of such certificates prior to any other entity providing said areas with such utility services.”

Amendment Notes —

The 2002 amendment rewrote this section.

Cross References —

Requirement of certificate of public convenience and necessity for construction of facility for generating and transmitting electricity, see §77-3-14.

Cancellation of utility’s certificate of public convenience and necessity prior to municipality’s exercise of eminent domain, see §77-3-21.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

JUDICIAL DECISIONS

1. Generally.

2. Issuance of certificate.

3. Rights under “grandfather” clause.

4. “Existing facility” rule.

5. “Existing certificate” rule.

6. Municipal entry into certificated area.

7. Effect of municipal annexation.

8. Encroachment into certificated area.

9. Miscellaneous.

1. Generally.

A utility has the express right and duty to provide service within its certificated area, and to allow invasion of a certificated area because of a desire of a customer to be served by another utility would cause wasteful duplication and undermine the purpose of the Public Utility Act. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

Since the legislature had the right and power to determine the public necessity, it also had the power to delegate that function to the public service commission. Mississippi Power Co. v. East Mississippi Electric Power Asso., 249 Miss. 869, 164 So. 2d 479, 1964 Miss. LEXIS 442 (Miss. 1964).

The manifest policy of this legislation is to prevent duplicating and over-riding facilities and certificates. Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So. 2d 739, 1961 Miss. LEXIS 443 (Miss. 1961).

2. Issuance of certificate.

An award of a certificate of public convenience and necessity by the Public Service Commission to an electric utility is an exclusive permit to furnish electricity to the persons using electricity in the area designated and certificated to the utility so long as the utility holding the certificate is capable and willing to provide electric energy to the persons within the area. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

It is unnecessary, as a prerequisite to the grant of a certificate of convenience and necessity to serve an undeveloped area, that there had been requests for service in the area. East Mississippi Electric Power Asso. v. Mississippi Power Co., 254 Miss. 832, 182 So. 2d 925, 1966 Miss. LEXIS 1581 (Miss. 1966).

The commission should issue certificates of convenience and of necessity on an area basis in the usual case. Mississippi Power & Light Co. v. Delta Electric Power Asso., 252 Miss. 832, 174 So. 2d 356, 1965 Miss. LEXIS 1150 (Miss. 1965).

The issuance of a certificate under this section is a valid exercise of the state’s police power. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

A certificate of public convenience and necessity issued under this section is a valuable right entitled to protection by the courts. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963); Capital Electric Power Asso. v. Mississippi Power & Light Co., 218 So. 2d 707, 1968 Miss. LEXIS 1265 (Miss. 1968); Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

The public service commission was authorized to grant to an electric power association a certificate of public convenience and necessity on an area basis rather than a facility basis, and the exclusiveness of the electric power association’s right in the areas for which a certificate has been awarded depends upon whether it renders adequate service. Mississippi Power Co. v. East Mississippi Electric Power Asso., 244 Miss. 40, 140 So. 2d 286, 1962 Miss. LEXIS 421 (Miss. 1962).

The action of the public service commission in granting a certificate of public convenience and necessity cannot be overturned if it is supported by substantial evidence, is not arbitrary or capricious, or beyond its power to make, and does not violate some constitutional right. Mississippi Power & Light Co. v. Blake, 236 Miss. 207, 109 So. 2d 657, 1959 Miss. LEXIS 310 (Miss. 1959); Mississippi Power Co. v. East Mississippi Electric Power Asso., 249 Miss. 869, 164 So. 2d 479, 1964 Miss. LEXIS 442 (Miss. 1964).

3. Rights under “grandfather” clause.

A certificate of public convenience and necessity issued to an electric power association, under the so-called “Grandfather Clause” under this section, gave it the exclusive right to furnish electric energy to patrons within the area designated in the certificate and the electric power association was entitled to an injunction against a municipality enjoining it from invading the certificated area. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

“Grandfather” certificates awarded under this section are on an area, not a facility basis, and the policy of “territorial integrity” of service areas has clearly been recognized. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

A grandfather certificate for a wholesale electric transmission line is a privilege, regulated and controlled by the state within due process limitations and may be terminated when the needs of the public demand it. Mississippi Power Co. v. South Mississippi Electric Power Asso., 254 Miss. 754, 183 So. 2d 163, 1966 Miss. LEXIS 1574 (Miss.), cert. denied, 385 U.S. 823, 87 S. Ct. 51, 17 L. Ed. 2d 60, 1966 U.S. LEXIS 655 (U.S. 1966).

Under peculiar and special circumstances the commission may authorize the continuance of operations on a facility basis as they were being served on the effective date of the Act. Mississippi Power & Light Co. v. Delta Electric Power Asso., 252 Miss. 832, 174 So. 2d 356, 1965 Miss. LEXIS 1150 (Miss. 1965).

Awards of “grandfather” certificates under this section are on an area rather than a facility basis. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963); Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

The right of existing utilities to a certificate of necessity and convenience under this section is a valuable one, entitled to judicial protection. Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So. 2d 739, 1961 Miss. LEXIS 443 (Miss. 1961).

4. “Existing facility” rule.

The public service commission was not required to apply the existing facility rule in a proceeding on an application by a telephone answering service for a certificate of public convenience and necessity to render mobile radio service. Keith v. Palmer, 235 So. 2d 454, 1970 Miss. LEXIS 1449 (Miss. 1970).

In determining whether a certificate of convenience and necessity should be granted, the existing facility rule need not be applied to transmission and reception by means of radio waves. Keith v. Palmer, 235 So. 2d 454, 1970 Miss. LEXIS 1449 (Miss. 1970).

While the existing facility rule is applicable to telephone and other public communication services, it should not be used arbitrarily or inflexibly. Keith v. Bay Springs Tel. Co., 251 Miss. 106, 168 So. 2d 728, 1964 Miss. LEXIS 332 (Miss. 1964).

Where a telephone company proposes, as a part of its general telephone service, to install and operate radio telephone services which are not duplicative of an existing radio telephone service located partly in the same general area, the existing facility rule does not apply. Keith v. Bay Springs Tel. Co., 251 Miss. 106, 168 So. 2d 728, 1964 Miss. LEXIS 332 (Miss. 1964).

5. “Existing certificate” rule.

The “existing certificate” rule is that a certificate should not be granted where there is existing adequate service over the route applied for, and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional services as may be required, and this rule has been applied to the issuance of certificates to public electric utility companies. Mississippi Power Co. v. South Mississippi Electric Power Asso., 254 Miss. 754, 183 So. 2d 163, 1966 Miss. LEXIS 1574 (Miss.), cert. denied, 385 U.S. 823, 87 S. Ct. 51, 17 L. Ed. 2d 60, 1966 U.S. LEXIS 655 (U.S. 1966).

6. Municipal entry into certificated area.

The invasion of an area certificated to a public utility by another utility, even though the invading utility belongs to a municipality, will subject it to a suit in the courts and to damages growing out of such invasion. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

Although a municipal electric utility is not subject to the regulation of the Public Service Commission, and the Commission has no authority to issue a cease and desist order against the municipality, as it may do against regulated utilities, nevertheless, the right to operate a public electric utility under the authority of a certificate of public convenience and necessity issued by the Public Service Commission is a valuable right which may be protected by the courts. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

The public service commission has no jurisdiction to issue a cease and desist order to prevent a municipality from providing water service within its limits in competition with a private previously certificated water company. City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

The expansion of a municipality into an area served by a private certificated water company did not give it any rights whatsoever to furnish water to the inhabitants of the certificated area in competition with the private company. City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

The measure of damages for which a municipality is liable for invading the area served by a certificated private water company and there furnishing water in competition with it is the difference between the fair market value of the business as a going concern and the fair market value of any assets remaining after the business closed and ceased to operate as a consequence of the city’s competition, and every element of the plant and system reasonably required for its operation should be taken into consideration, including the value of its certificate of public convenience and necessity. City of Jackson v. Creston Hills, Inc., 252 Miss. 564, 172 So. 2d 215, 1965 Miss. LEXIS 1130 (Miss. 1965).

7. Effect of municipal annexation.

A public utility part of whose certificated area has been annexed to a city may continue to serve the annexed area without obtaining a franchise from the city; but subject to the right of the city to regulate reasonably the manner in which its lines and appliances are constructed and maintained. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963); Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

This section does not indicate an intent that a utility, part of whose certificated area has been annexed by a municipality, obtain a municipal franchise before operating therein. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

A certificate issued under this section is not superseded, in a certificated area annexed to a city, by a franchise granted by the city to another utility. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

8. Encroachment into certificated area.

The fact that a college had been a customer of one utility company for many years would go only to the question of “grandfather” rights of the company and not to the right of the college to serve itself by transmission of electricity on lines owned by it within the certificated area of another utility after purchase of the electricity from the first company at a point outside the second company’s certificated area. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

A customer does not have a right to choose what utility to purchase service from. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

The fact that electricity purchased by a college was metered in one utility company’s service area, and the fact that it is transmitted across a continuous tract of land uncrossed by any public street or road does not give the college and the utility company the right to encroach upon the exclusive service area of a second utility and thus deprive it of a valuable property right without due process of law. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

The fact that a college, the consumer of electricity, is not a “public utility” within the meaning of the Public Utility Act does not affect the authority of the commission to issue a cease and desist order against a public utility which is furnishing the energy consumed within the certificated area of a second utility. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

A college, consumer of electricity, was not denied due process when it was given an opportunity to be heard (which it utilized fully) in a proceeding in which the public service commission issued a cease and desist order against one utility company which was furnishing service to the college within the certificated area of another utility; nor did the issuance of the order impair the contract between the college and the first utility company, for the contract was not paramount to the legislative authority vested in the commission at the time the contract was made. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

That a utility company held a nonexclusive franchise from a county board of supervisors provided no basis for its contention that it had the right to serve a customer at a location within the certificated area of another utility. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

The fact that a utility company had a municipal franchise to serve a city did not give it the right to serve subsequently annexed areas which were located in the certificated area of another utility. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

Where a utility company was forbidden to serve a consumer at a location within the certificated area of another utility directly, to permit it to so serve its customers indirectly would be a violation of the utility act. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

9. Miscellaneous.

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

Amendments to Public Utilities Act of 1956 requiring Public Service Commission (PSC) cancellation of public utility’s certificate of public convenience and necessity before municipality could exercise eminent domain power to acquire utility’s facilities did not violate state constitutional provision prohibiting abridgment of eminent domain rights, despite contention that, by allowing utility to correct any inadequacies before Commission would cancel certificate, amended Act effectively placed ability to abridge power of eminent domain in hands of private corporations; legislature, which could grant or deny power of eminent domain to municipality, could also establish procedure or method by which power might be void. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Municipalities lacked due process rights which could be offended by amendments to Public Utilities Act of 1956 requiring Public Service Commission (PSC) cancellation of public utility’s certificate of public convenience and necessity before municipal exercise of eminent domain power over utility facilities, despite contention that amended Act, by allowing utility to correct any inadequacies before Commission would cancel certificate, placed option of preventing exercise of municipalities’ power of eminent domain in hands of utilities; municipalities had no due process rights against legislature, and municipalities could not invoke due process clause against utilities because they were private entities. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Certificate of public convenience and necessity issued by Public Service Commission (PSC) to utility grants exclusive right to operate in designated area, so long as utility is capable of providing adequate service to customers in area covered by certificate. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

The adoption of rules providing a procedure not permitted by §77-3-13(3) for the suspension and voiding of a certificate of convenience and necessity exceeded the authority of the Mississippi Public Service Commission, and the rules were therefore invalid. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

The Mississippi Public Service Commission exceeded its authority in adopting a rule requiring a utility to provide written notice to its customers of the utility’s filing for any certificate because §77-3-13(3) provides that the Commission shall give the notice required, and therefore the rule would transfer this duty to the utilities contrary to the provisions of the statute. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

In a proceeding on an application by a telephone answering service for a certificate of public convenience and necessity to render mobile radio service, a telephone company had a right to intervene for the purpose of protecting its rights and insuring that such rights were not diminished or affected by the issuance of any new certificate of public convenience and necessity. Keith v. Palmer, 235 So. 2d 454, 1970 Miss. LEXIS 1449 (Miss. 1970).

A proceeding for the determination of which of two utilities had the right to serve a customer in a disputed area is not the proper vehicle to determine a rate issue. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

Although the public service commission granted certificates of convenience and necessity respectively to two electric utilities to furnish service to oil fields on the basis of a private agreement previously entered into between them, and the orders of the commission referred to the agreement for descriptions and locations of the various oil field requirements, it was the action and decision of the commission as contained in its orders that gave validity to the allocation of service between the utilities, rather than any private contract or agreement of theirs. Southwest Mississippi Electric Power Asso. v. Mississippi Power & Light Co., 199 So. 2d 826, 1967 Miss. LEXIS 1313 (Miss. 1967).

The public service commission could not force the United States government to permit any public utility to serve the area embraced in an air force base. Mississippi Power & Light Co. v. Delta Electric Power Asso., 252 Miss. 832, 174 So. 2d 356, 1965 Miss. LEXIS 1150 (Miss. 1965).

OPINIONS OF THE ATTORNEY GENERAL

If municipally owned plant, project or development, route, line or system or extension thereof is contemplated in area which has been certificated to another utility, certificate authorizing same must first be obtained from Mississippi Public Service Commission. Leslie, July 15, 1992, A.G. Op. #92-0512.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 9 et seq., 22 et seq.

12 Am. Jur. Pl & Pr Forms (Rev), Franchises, Forms 21, 23, 26 (unauthorized competition).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 52 (order granting certificate of public convenience and necessity).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 61.1 (petition or application–for writ of review–to reverse order of public utilities commission regarding certificate of public convenience and necessity).

CJS.

37 C.J.S., Franchises §§ 18-20 et seq.

§ 77-3-14. Certificate of public convenience and necessity required for construction of electrical generating and transmitting facilities; commission to maintain analysis of electricity needs in state.

  1. Notwithstanding the provisions of Section 77-3-11, Mississippi Code of 1972, and Section 77-3-13, Mississippi Code of 1972, no public utility or other person shall begin the construction of any facility for the generation and transmission of electricity to be directly or indirectly used for the furnishing of public utility service in this state, even though the facility be for furnishing the service already being rendered, without first obtaining from the commission a certificate that the public convenience and necessity requires, or will require, such construction.
  2. The commission shall develop, publicize and keep current an analysis of the long-range needs for expansion of facilities for the generation of electricity in Mississippi, including its estimate of the probable future growth of the use of electricity, the probable needed generation reserves, the extent, size, mix and general location of generating plants and arrangements for pooling power to the extent not regulated by the Federal Energy Regulatory Commission and other arrangements with other utilities and energy suppliers to achieve maximum efficiencies for the benefit of the people of Mississippi, and shall consider such analysis in acting upon any petition by any utility for construction. Each public utility engaged in the generation, transmission and distribution of electric energy shall, upon request of the commission, submit to the commission its forecasts and plans for the addition of generating capacity planned by the utility for an ensuing five-year period and shall furnish to the commission such documents and proof with respect to the need therefor as the commission may reasonably require. In considering these analyses and forecasts, the commission shall consult with the University Research Center, the utilities commissions or comparable agencies of neighboring states, the Federal Energy Regulatory Commission and other agencies having relevant information and/or duties and responsibilities in this area, and particularly with the Department of Economic and Community Development with reference to the accomplishment of the Mississippi Energy Plan provided for in Section 57-39-11, Mississippi Code of 1972.
  3. In acting upon any petition for the construction of any facility for the generation of electricity, the commission shall take into account the utility’s arrangements with other electric utilities for interchange of power, pooling of plant, purchase of power and other methods for providing reliable, efficient and economical electric service.
  4. As a condition for receiving such certificate, the utility shall file an estimate of construction costs in such detail as the commission may require. The commission shall hold a public hearing on each application, and no certificate shall be granted unless the commission has approved the estimated construction costs.
  5. The commission shall maintain an ongoing review of such construction as it proceeds, and the applicant shall submit at such times as the commission shall require during construction a progress report and any revisions in the cost estimates for the construction.
  6. The certification requirements of this section shall not apply to persons who construct an electric generating facility primarily for that person’s own use and not for the primary purpose of producing electricity, heat or steam for sale to or for the public for compensation; and the commission may provide for exemption from certification requirements for cogeneration facilities and small standby facilities; provided, however, that such persons shall, nevertheless, be required to report to the commission the proposed construction of such a facility before beginning construction thereof.

HISTORY: Laws, 1983, ch. 467, § 11; Laws, 1988, ch. 518, § 90; Laws, 1992, ch. 496, § 54, eff from and after July 1, 1992.

Cross References —

University Research Center, see §§37-141-1 et seq.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

§ 77-3-15. Two or more persons holding certificates for similar operations in same municipality.

Where there shall be two (2) or more persons holding certificates of convenience and necessity for similar operation in the same municipality, such operation may be carried on by such persons within their respective certificated areas and such persons shall be exempt from further application to the commission for extension of or additions to their facilities within their respective certificated areas of said municipality, including any extensions of the corporate limits thereof.

Municipally operated utilities shall not be subject to regulation under this article.

HISTORY: Codes, 1942, § 7716-05; Laws, 1956, ch. 372, § 5; Laws, 2013, ch. 321, § 1, eff from and after passage (approved Mar. 7, 2013).

Amendment Notes —

The 2013 amendment added “(2)” following “two” near the beginning of the first paragraph; and deleted the former first sentence of the second paragraph which read: “When more than one utility, including cooperatives, operate within a municipality all such utilities, including co-operatives, shall be subject to rate regulation therein.”

JUDICIAL DECISIONS

1. In general.

The Public Service Commission has the authority to issue certificates of public convenience and necessity to operate electric utilities to persons operating such utilities within the area at the effective date of the public service, although such utilities were operating within city limits of a municipality. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

The legislature intended that certificates of public convenience and necessity be issued on an area basis rather than on a facility basis. Capital Electric Power Asso. v. Canton, 274 So. 2d 665, 1973 Miss. LEXIS 1606 (Miss. 1973).

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 27 et seq.

CJS.

37 C.J.S., Franchises §§ 27-36.

§ 77-3-16. Bids required on certain public utility contracts; exceptions; list of contractors and suppliers.

  1. All contracts for construction, extension and/or repair of facilities in excess of two hundred thousand dollars ($200,000.00) by or on the behalf of any public utility subject to rate regulations by the Mississippi Public Service Commission, shall be governed by this section. The public utility shall maintain a list of contractors and suppliers qualified to perform contracts within the scope of proposed utility projects. The public utility shall, upon written request of any qualified prospective bidder, add his or its name to such list. At least every six (6) months, the public utility shall publish in a newspaper, having general circulation in the area in which the utility operates, a notice requesting names of qualified contractors and suppliers. Upon written request by qualified contractors and suppliers, those names shall be added to such list. The public utility shall give to each contractor or supplier on said list who is qualified with respect to a project under consideration written invitation to bid those projects subject to this section. Contracts subject to this section shall be awarded to the lowest and best bidder. Provided, however, nothing contained herein shall prohibit any public utility from performing services covered by this section with its own regularly employed work force.
  2. The public utility may enter into a master contract with the lowest and best contractor to cover all construction work to be performed in a specified geographic area.
  3. If the chief executive officer of a public utility determines that an emergency exists which affects the public health, safety or welfare, the provisions of this section shall not apply. As used in this section an emergency is any occurrence in which service is interrupted.
  4. The provisions of this section shall not apply to contracts which by their nature are not adapted to competitive bidding, including but not limited to:
    1. Items which may be acquired from a sole source;
    2. Contracts for professional services;
    3. Equipment and systems which by reason of the training of personnel or of any inventory replacement of parts maintained by the utility, are or should be compatible with existing equipment;
    4. Contracts for interstate or intrastate carriage of persons or property with a common carrier or contract carrier at the rates set forth in the officially approved tariff of that carrier; and
    5. Such contracts as the commission may define by regulation.
  5. The public service commission shall have the authority to monitor all conditions contained in this section.

HISTORY: Laws, 1983, ch. 467, § 12, eff from and after passage (approved April 6, 1983).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

§ 77-3-17. Operation of public utility following expiration of municipal franchise; municipal acquisition of utility.

In addition to such other rights as it may have to use the streets, alleys and public places of a municipality, a public utility which holds a certificate of public convenience and necessity granted under the provisions of this article covering the geographical area of such municipality, and which (1) is operating under a municipal franchise on March 29, 1956, or (2) shall have previously operated under such a municipal franchise which has expired within five (5) years prior to said date, or (3) which shall hereafter operate under a municipal franchise hereafter granted, may, after the expiration of any such franchise continue to use the streets, alleys and public places therein situated upon condition that (1) such utility shall pay the said municipality compensation therefor at the rate of two percent (2%) of said utility’s gross revenue from sales to residential and commercial customers within said municipality, in case of a utility defined in subparagraphs (i) and (ii) of paragraph (d) of Section 77-3-3 and in the case of a utility defined in subparagraph (iii) of paragraph (d) of said Section the said utility shall pay two percent (2%) of the monthly service charges in said municipality whether said utility has a franchise to operate therein or not, such payments to be made quarterly of each year, and (2) after the expiration of such franchise the municipality, or any customer of such utility in such municipality, upon appropriate petition, shall be entitled to a hearing as to whether or not the certificate of convenience and necessity may then and thereafter be granted on a permanent basis. Any co-operative which shall operate within any area of a municipality shall likewise pay such municipality two percent (2%) of the co-operative’s gross revenue from sales to residential and commercial customers within said municipality.

Any municipality shall have the right to acquire by purchase, negotiation or condemnation the facilities of any utility that is now or may hereafter be located within the corporate limits of such municipality; provided, however, prior to any municipality exercising the right of eminent domain as provided herein, the commission shall determine that the certificate of public convenience and necessity granted to the utility pursuant to Section 77-3-13 for the service area wherein such facilities are located, shall be cancelled as provided in Section 77-3-21.

HISTORY: Codes, 1942, § 7716-05; Laws, 1956, ch. 372, § 5; Laws, 1987, ch. 353, § 3, eff from and after passage (Governor’s veto overridden by Legislature on March 17, 1987).

Joint Legislative Committee Note —

Joint Legislative Committee Note- Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors in the first paragraph, by substituting “subparagraphs (i) and (ii) of paragraph (d)” for “subparagraphs (1) and (2) of paragraph (d)” and “subparagraph (iii) of paragraph (d)” for “subparagraph (3) of paragraph (d).” The Joint Committee ratified the correction at its July 22, 2010, meeting.

Editor’s Notes —

Laws of 1987, ch. 353, § 1, effective March 17, 1987, provides as follows:

“SECTION 1. It is hereby found and declared that it is in the public interest of and beneficial to this state and its people, and in particular to the consumers and customers of regulated public utilities as defined in Section 77-3-3(d)(i),(ii) and (iii), Mississippi Code of 1972, that such customers and consumers be assured of continued adequacy of utility services.

“It is further found and declared that the Mississippi Public Service Commission is the public agency vested with the authority and jurisdiction over the regulation of public utilities and should exercise such jurisdiction and authority over utility services provided to the inhabitants and consumers of those service areas which have been included in certificates of public convenience and necessity and operating rights granted by said commission by exercising the authority heretofore granted to said commission by this Legislature with regard to the cancellation of such certificates prior to any other entity providing said areas with such utility services.”

Cross References —

Public utility paying compensation under this section being exempted from tax levied under City Utility Tax Law and vice versa, see §21-33-203.

Requirements and procedures for issuance of certificate of public convenience and necessity, see §77-3-13.

JUDICIAL DECISIONS

1. In general.

2. Existing contracts not invalidated.

1. In general.

In a condemnation proceeding, the trial court erred by failing to strike the testimony of the city’s expert because his entire appraisal of the value of the private water utility was based on data from Public Service Commission used to determine rates that did not include the value of property contributed by land developers; “contributed property” must be included in the utility plant value for the purpose of condemnation under Miss. Code Ann. §77-3-17, even though such items were not included for purposes of rate-regulation under Miss. Code Ann. §77-3-43(2). Dedeaux Util. Co. v. City of Gulfport, 938 So. 2d 838, 2006 Miss. LEXIS 529 (Miss. 2006).

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

Water and sewer utilities are excluded from the eminent domain cancellation requirement. City of Gulfport v. Orange Grove Utils., Inc., 735 So. 2d 1041, 1999 Miss. LEXIS 127 (Miss. 1999).

The plain meaning of this section leaves no doubt that a city has no authority to condemn areas lying outside its corporate limits. City of Gulfport v. Orange Grove Utils., Inc., 735 So. 2d 1041, 1999 Miss. LEXIS 127 (Miss. 1999).

Certificate of public convenience and necessity issued by Public Service Commission (PSC) to utility grants exclusive right to operate in designated area, so long as utility is capable of providing adequate service to customers in area covered by certificate. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Municipalities lacked due process rights which could be offended by amendments to Public Utilities Act of 1956 requiring Public Service Commission (PSC) cancellation of public utility’s certificate of public convenience and necessity before municipal exercise of eminent domain power over utility facilities, despite contention that amended Act, by allowing utility to correct any inadequacies before Commission would cancel certificate, placed option of preventing exercise of municipalities’ power of eminent domain in hands of utilities; municipalities had no due process rights against legislature, and municipalities could not invoke due process clause against utilities because they were private entities. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

An amendment to §77-3-17, providing that prior to a municipality exercising the power of eminent domain against a utility the certificate of public convenience and necessity held by the utility had to be cancelled by the Public Service Commission, applied to an action which was pending on the date the statute was amended. Since the right of eminent domain is a creation of statute, any amendment would be treated as though it had been a part of the original statute. Additionally, where a statute affects only the mode of procedure, and not the substantive rights of parties, it applies to pending actions. City of Clarksdale v. Mississippi Power & Light Co., 556 So. 2d 1056, 1990 Miss. LEXIS 33 (Miss. 1990).

Seven USCS § 1926(b) precludes municipal condemnation of nonprofit rural water association’s facilities that are located within municipal limits during term of association’s indebtedness to Madison v. Bear Creek Water Asso., 816 F.2d 1057, 1987 U.S. App. LEXIS 6328 (5th Cir. Miss. 1987).

Municipality was not authorized by law to condemn public utility’s physical facilities used to serve a manufacturing company and to take the company as the municipality’s customer without also condemning the public utility’s operating rights. Mississippi Power & Light Co. v. Clarksdale, 288 So. 2d 9, 1973 Miss. LEXIS 1338 (Miss. 1973).

A telephone and telegraph company had acquired vested rights under Chapter 38, Laws of 1886, so that Chapter 372, Laws of 1956, to the extent that it authorizes municipalities to impose charges on such company for the use of highways and streets, is unconstitutional, and remanded to District Court with directions to hold the cause while parties proceed to state tribunal for authoritative declaration of applicable state law. Southern Bell Tel. & Tel. Co. v. Meridian, 154 F. Supp. 736, 1957 U.S. Dist. LEXIS 3163 (D. Miss. 1957), aff'd, 256 F.2d 83, 1958 U.S. App. LEXIS 4302 (5th Cir. Miss. 1958).

2. Existing contracts not invalidated.

Miss. Code Ann. §77-3-17 (as amended) has not invalidated existing contracts between entities delivering public utilities. City of Starkville v. 4-County Elec. Power Ass'n, 819 So. 2d 1216, 2002 Miss. LEXIS 1 (Miss. 2002).

OPINIONS OF THE ATTORNEY GENERAL

Section 77-3-17 makes it clear that power cooperatives must pay two percent of all residential and commercial gross revenues to the municipality in which they are located. Thus, it makes no difference how many various categories, meter rates or charges the cooperative utilizes in determining what fee must be paid to the municipality. Ringer, August 30, 1996, A.G. Op. #96-0557.

An electric power association was to be responsible to a city for 2 percent of its gross revenue from sales to both residential and commercial customers in the part of the city which it served. Brand, May 1, 2000, A.G. Op. #2000-0202.

Pursuant to §77-3-17 power cooperatives must pay a franchise fee of two percent of all residential and commercial gross revenues to the municipality in which they are located; it makes no difference how many categories, meter rates or charges the cooperative utilizes in determining what fee must be paid. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

There is no difference in revenue derived from commercial customers and industrial customers in calculating gross revenues for the purposes of payment of the franchise fee by a power cooperative. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

All electricity sold in a municipality by a power cooperative be included in the calculation of gross revenues. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

If a power cooperative has excluded revenues from sales to industrial customers in calculating the amount of the franchise fee, then it may owe the city the fees from these sales to industrial customers. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

A city is mandated to collect franchise fees from utility companies, telephone companies and rural electric cooperatives pursuant to §77-3-17 and may enforce payment of franchise fees in a court of competent jurisdiction. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

Payment of franchise fees by public utilities that operate in municipalities is required by §77-3-17 which does not state that the utilities must have a written franchise agreement with the municipalities as a condition for payment of the fees. Mitchell, Sept. 20, 2002, A.G. Op. #02-0510.

Under the provisions of §77-3-1, a public utility owned by the city of Holly Springs that is providing electricity to the town of Ashland is exempt from the requirement in this section that it pay the town two percent of it’s gross revenue from sales to residential and commercial customers within the municipality. Stone, Nov. 19, 2004, A.G. Op. 04-0529.

A municipality has the authority to acquire by eminent domain the facilities of any utility within the corporate limits of such municipality, but may not acquire by eminent domain those facilities of a utility located outside the municipal limits. Helmert, Oct. 28, 2005, A.G. Op. 05-0518.

A water and/or sewer utility certificated by the Public Service Commission which has not operated under a previously expired franchise granted by a municipality is not subject to the 2% fee imposed by Section 77-3-17 upon the annexation of all or a portion of its certificated area into a municipality’s corporate limits. McCluer, Nov. 10, 2006, A.G. Op. 06-0526.

RESEARCH REFERENCES

Am. Jur.

12 Am. Jur. Pl & Pr Forms (Rev), Franchises, Form 1 (complaint, petition, or declaration by municipality to recover percentage of gross earnings as agreed compensation for exercise of franchise).

§ 77-3-19. Applicant for certificate must obtain a municipal franchise.

Notwithstanding any provision in this article to the contrary, in any case where a utility is located and operates, or proposed to locate and operate in a municipality where streets and other public places are essential to such location and operation, no certificate of convenience and necessity shall be issued thereasto without prior franchise granted by the municipality. Such franchise shall not contain any provision conflicting with or repugnant to the exclusive jurisdiction of the commission to regulate rates and services of the utilities as provided in this article. Applicants for certificates of convenience and necessity shall attach to their applications true and correct copies of franchises issued to them by such municipality as the application may embrace. The commission is authorized so to amend such franchise as to exclude and remove therefrom any provision in conflict with or repugnant to the exclusive jurisdiction of the commission over rates and services and which shall in any way fix or affect rates. Should any municipality arbitrarily refuse to grant a franchise or provide for an election for a franchise as provided by law to a utility now operating within said municipality within ninety (90) days after application for said franchise is made, then the utility may obtain a certificate of convenience and necessity without the necessity of first obtaining a franchise. The commission shall so issue said certificate of convenience and necessity upon proper showing by the utility that said franchise is being arbitrarily withheld.

In the event the commission shall rule that a franchise is being arbitrarily withheld and shall issue a certificate of necessity as hereinabove mentioned, the utility obtaining said certificate of convenience and necessity shall not be required to pay to said municipality the two percent (2%) provided for in Section 77-3-17 until such a franchise has been granted to said utility.

In the case of a public utility as defined in subparagraph (iii) of paragraph (d) of Section 77-3-3 which has heretofore been under the jurisdiction of the commission and has its service area maps on file with the commission on March 29, 1956, under such reasonable rules and regulations as the commission shall prescribe, the commission is authorized to issue to such utility a certificate of convenience and necessity without requiring such utility to first obtain a municipal franchise as herein provided.

HISTORY: Codes, 1942, § 7716-05; Laws, 1956, ch. 372, § 5.

Joint Legislative Committee Note —

Joint Legislative Committee Note- Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the last paragraph, by substituting “subparagraph (iii) of paragraph (d)” for “subparagraph (3) of paragraph (d).” The Joint Committee ratified the correction at its July 22, 2010, meeting.

RESEARCH REFERENCES

Am. Jur.

8 Am. Jur. Legal Forms 2d, Franchises from Public Entities §§ 124:23-124:44 (grant and acceptance of franchise).

8B Am. Jur. Legal Forms 2d, Franchises from Public Entities §§ 124:47-124:50 (description and conditions of particular franchises).

8B Am. Jur. Legal Forms 2d, Franchises from Public Entities §§ 124:26-124:80 (optional provisions).

§ 77-3-21. Hearing on adequacy of service afforded by certificate holder.

The commission may, after a hearing had upon due notice, make such findings as may be supported by proof as to whether any utility holding a certificate under the provisions of this article is rendering reasonably adequate service in any area covered by such utility’s certificate. In the event the commission finds that such utility is not rendering reasonably adequate service the commission may enter an order specifying in what particulars such utility has failed to render reasonably adequate service and order that such failure be corrected within a reasonable time, such time to be fixed in such order. If the utility so ordered to correct such a failure fails to comply with such order of the commission and the commission finds that cancellation of its certificate would be in the best interest of the consuming public served by the holder of the certificate, its certificate for the area affected may be revoked and cancelled by the commission.

Prior to any municipality exercising the power of eminent domain as provided in Section 77-3-17, the commission shall determine that the certificate of public convenience and necessity granted to the utility pursuant to Section 77-3-13 for the service area wherein such facilities are located, shall be cancelled as provided in this section. Nothing in this paragraph shall be construed to include service for water and sewage.

HISTORY: Codes, 1942, § 7716-05; Laws, 1956, ch. 372, § 5; Laws, 1987, ch. 353, § 4; Laws, 1992, ch. 417, § 2, eff from and after passage (approved April 29, 1992).

Editor’s Notes —

Laws of 1987, ch. 353, § 1, effective March 17, 1987, provides as follows:

“SECTION 1. It is hereby found and declared that it is in the public interest of and beneficial to this state and its people, and in particular to the consumers and customers of regulated public utilities as defined in Section 77-3-3(d)(i),(ii) and (iii), Mississippi Code of 1972, that such customers and consumers be assured of continued adequacy of utility services.

“It is further found and declared that the Mississippi Public Service Commission is the public agency vested with the authority and jurisdiction over the regulation of public utilities and should exercise such jurisdiction and authority over utility services provided to the inhabitants and consumers of those service areas which have been included in certificates of public convenience and necessity and operating rights granted by said commission by exercising the authority heretofore granted to said commission by this Legislature with regard to the cancellation of such certificates prior to any other entity providing said areas with such utility services.”

Cross References —

Applicability of this section to proceedings for enforcement of statutes administered by commission or regulations or orders of commission, see §77-1-53.

Application of this section to hearing to determine whether regulated utility is meeting public convenience and necessity requirements, see §77-3-11.

Municipality’s acquisition by purchase, negotiation or condemnation, facilities of any utility within its corporate limits, see §77-3-17.

Cancellation of utility’s certificate of public convenience and necessity prior to municipality’s exercise of eminent domain, see §77-3-21.

Placement of privately owned water system in receivership, see §77-3-22.

JUDICIAL DECISIONS

1. In general.

Mississippi Public Service Commission did not err by failing to institute adequacy of service proceedings against a water, sewer, and fire district because a resident did not allege any inadequacy of service in his complaint to the Commission, and none of the other petitioners actually joined in the resident’s complaint to the Commission. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

Water and sewer utilities are excluded from the eminent domain cancellation requirement. City of Gulfport v. Orange Grove Utils., Inc., 735 So. 2d 1041, 1999 Miss. LEXIS 127 (Miss. 1999).

Certificate of public convenience and necessity issued by Public Service Commission (PSC) to utility grants exclusive right to operate in designated area, so long as utility is capable of providing adequate service to customers in area covered by certificate. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

Municipalities lacked due process rights which could be offended by amendments to Public Utilities Act of 1956 requiring Public Service Commission (PSC) cancellation of public utility’s certificate of public convenience and necessity before municipal exercise of eminent domain power over utility facilities, despite contention that amended Act, by allowing utility to correct any inadequacies before Commission would cancel certificate, placed option of preventing exercise of municipalities’ power of eminent domain in hands of utilities; municipalities had no due process rights against legislature, and municipalities could not invoke due process clause against utilities because they were private entities. Cities of Oxford, Carthage, Louisville, Starkville & Tupelo v. Northeast Miss. Elec. Power Ass'n, 704 So. 2d 59, 1997 Miss. LEXIS 386 (Miss. 1997).

The method for cancellation of a certificate prescribed by this section is exclusive. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

Public service commission was authorized to grant to an electric power association a certificate of public convenience and necessity on an area basis rather than a facility basis, and the exclusiveness of the electric power association’s right in the areas for which a certificate has been awarded depends upon whether it renders adequate service. Mississippi Power Co. v. East Mississippi Electric Power Asso., 244 Miss. 40, 140 So. 2d 286, 1962 Miss. LEXIS 421 (Miss. 1962).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 176 et seq.

§ 77-3-22. Placement of privately owned water and sewer systems in receivership; conditions.

If the commission determines that any privately owned water and/or sewer system within its jurisdiction is unable or unwilling to adequately serve its customers or has been actually or effectively abandoned by its owner, or that its management is grossly inefficient, irresponsible or unresponsive to the needs of its customers, the commission or its designated representative may petition the Chancery Court of the First Judicial District of Hinds County or the chancery court of any county wherein the public utility does business for an order attaching the assets of the privately owned water and/or sewer system and placing such water and/or sewer system under the sole control and responsibility of a receiver. If the court determines that the petition is proper in all respects and finds, after a hearing thereon, the allegations contained in the petition are true, it shall order that the water and/or sewer system be placed in receivership. The court, in its discretion and in consideration of the recommendation of the commission or its designated representative, may appoint a receiver who shall be a responsible individual, partnership, corporation or political subdivision knowledgeable in water or sewer service affairs and who shall maintain control and responsibility for the operation and management of the affairs of such water and/or sewer system. The receiver shall operate the water and/or sewer system so as to preserve the assets of the water and/or sewer system and to serve the best interests of its customers. The receiver shall be compensated from the assets of the water and/or sewer system in an amount to be determined by the court.

Control of and responsibility for the water and/or sewer system shall remain in the receiver until the court determines that it is in the best interests of the customers that the water and/or sewer system be returned to the owner, transferred to another owner or assumed by another water and/or sewer system or public service corporation. If the court, after hearing, determines that control of and responsibility for the affairs of the water and/or sewer system should not be returned to the legal owner thereof, the receiver may proceed to liquidate the assets of such water and/or sewer system in the manner provided by law.

Mississippi laws and Mississippi Rules of Civil Procedure generally applicable to receivership shall govern receiverships created under this section.

This section is in addition to the provisions of Section 77-3-21.

HISTORY: Laws, 1992, ch. 417, § 10; Laws, 1995, ch. 367, § 1, eff from and after passage (approved March 15, 1995).

Cross References —

Petition for appointment of receiver to operate and manage abandoned or grossly mismanaged sewer systems, see §49-17-44.1.

JUDICIAL DECISIONS

1. In general.

Public Service Commission (PSC) did not make sufficient findings of fact in its order denying rate increase to water utility; relevant portion of order merely stated that utility was not providing adequate service with money currently available and thus was not entitled to increase, Commission did not set forth persuasive evidence or conclusions drawn from evidence which it used in reaching decision, and Supreme Court on appeal was placed in awkward position of trying to ferret out sufficient evidence from record. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

§ 77-3-22.1. Preferences in transfer of ownership of privately owned water or sewer system in receivership.

In any county having a population of more than thirty-five thousand (35,000) but less than forty thousand (40,000), according to the most recent federal decennial census, any water or sewer system for which a finding is made under Section 49-17-44.1 or Section 77-3-22 by a court of competent jurisdiction that it is appropriate for a receiver to be appointed, the receiver shall give preference to a municipality within the county or to the governing authorities of the county in making any transfer of ownership of the water or sewer system. The term “preference,” as used in this section, means that no sale or transfer of the water or sewer system shall be approved by a court of competent jurisdiction or otherwise until two (2) years after the date of appointment of the receiver have elapsed. This right of preference may be waived by the local governmental entity given the preference under this section.

HISTORY: Laws, 2003, ch. 307, § 2, eff from and after passage (approved Feb. 27, 2003).

Cross References —

Petition for appointment of receiver to operate and manage abandoned or grossly mismanaged sewer systems, see §49-17-44.1.

§ 77-3-23. Procedure for sale, assignment, lease or transfer of certificate.

It shall be lawful, under the conditions specified below, for public utilities to sell, assign, lease, transfer or otherwise dispose, including, without limitation, any change in control of (a) certificates of public convenience and necessity issued to them under the provisions of this article, or (b) any substantial part of its property necessary or useful in the performance of its duties to the public, including corporate stock that is not publicly traded.

Whenever a purchase, lease, assignment or transfer is proposed, the utility or utilities or the person seeking authority therefor shall present an application to the commission in such form as may be prescribed by the commission. Thereupon the commission shall notify the applicant or applicants and other parties known to have a substantial interest in the proceedings of the time and place for a public hearing at least twenty (20) days prior thereto, unless the commission shall find that public convenience or necessity requires that such hearings be held at an earlier date. Notice of all such hearings shall be given the persons interested therein by mailing such notice to each public utility which may be affected by any order resulting therefrom and by publication in a newspaper having general circulation in the county or counties wherein the facilities or areas that are the subject of the application are located. If, after such hearing, the commission finds that the transaction proposed is in good faith, that the proposed assignee, lessee, purchaser or transferee, is fit and able properly to perform the public utility services authorized by such certificate and to comply with the lawful rules, regulations and requirements of the commission, and that the transaction is otherwise consistent with the public interest, it may enter an order approving and authorizing such sale, lease, assignment or transfer upon such terms and conditions as it shall find to be just and reasonable and with such modifications as it may prescribe. Whenever such a transaction involves facilities that are included in the rate base of a public utility, the commission shall include, as a prerequisite to its finding that the transaction is consistent with the public interest, a finding that, upon the consummation of the transaction proposed: (a)(i) the native load customers of the public utility will continue to have a first priority to the use and/or benefit of such facilities, or (ii) any loss of such first priority by native load customers to the use and/or benefit of such facilities is not contrary to the public interest; and (b) any native load customers served by any transmission facilities shall be served on the same basis as before the transaction.

Notwithstanding any provision of this section to the contrary, the application may be granted as applied for without a hearing in uncontested cases; however, the commission may hear any uncontested case if it determines that the public interest will be served thereby.

HISTORY: Codes, 1942, § 7716-41; Laws, 1966, Ex Sess ch. 46, § 1; Laws, 1992, ch. 417, § 3; Laws, 1994, ch. 351, § 1; Laws, 2003, ch. 385, § 1, eff from and after passage (approved Mar. 14, 2003).

Amendment Notes —

The 2003 amendment inserted “including without limitation any change in control” in the first paragraph; and added the last sentence in the second paragraph.

Cross References —

Public water authorities, see §§51-41-1 et seq.

Duty of public utilities staff to make recommendations concerning transfers of franchises, mergers, consolidations and combinations of public utilities, see §77-3-8.

Unlawful sale, lease, assignment or transfer of utility property described in this section, see §77-3-25.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

OPINIONS OF THE ATTORNEY GENERAL

There does not appear to be any prohibition of negotiated arrangement made with water system to provide free sewer hookups to all members of water association as of date of transfer. Woods Oct. 21, 1993, A.G. Op. #93-0663.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 57 et seq.

§ 77-3-25. Unlawful sale, lease, assignment or transfer of certificate or certain other utility property.

It shall be unlawful for any person, except as provided in Section 77-3-23 to accomplish or effectuate, or to participate in the accomplishing and effectuating, the sale, lease assignment or transfer of a certificate or other utility property described in Section 77-3-23, however the result is attained.

HISTORY: Codes, 1942, § 7716-42; Laws, 1966, Ex. Sess. ch. 46, § 2; Laws, 1994, ch. 351, § 2, eff from and after passage (approved March 14, 1994).

Cross References —

Investigation of violations of this section, see §77-3-27.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entitites § 61.

§ 77-3-27. Commission to investigate violations.

The commission is hereby authorized, upon complaint or upon its own initiative, to investigate and determine whether any person is violating the provisions of Section 77-3-25.

HISTORY: Codes, 1942, § 7716-43; Laws, 1966, Ex. Sess. ch. 46, § 3, eff from and after passage (approved December 28, 1966).

Cross References —

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

§ 77-3-29. Extension of service.

The commission may, after hearing, upon notice, by order in writing, require every public utility to establish, construct, maintain and operate any reasonable extension of its existing facilities within the certificated area upon findings and order that such extension is reasonable and practicable, and provided further, that in the case of gas and water a sufficient supply is available and obtainable therefor.

HISTORY: Codes, 1942, § 7716-06; Laws, 1956, ch. 372, § 6.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 156.

§ 77-3-31. Accounts and depreciation reports of utilities.

The commission, by rules and regulations, after notice and hearing shall establish a system of accounts to be kept by the public utilities, the rates of which are subject to regulation by the provisions of this chapter, or the commission may classify said public utilities and establish a system of accounts for each class, and prescribe the manner in which such accounts shall be kept. Every such public utility shall keep and render to the commission in the manner and form prescribed by the commission uniform accounts of all its public utility operations. In the case of any public utility subject to regulation by a federal regulatory agency, compliance with the system of accounts prescribed for the particular class of utilities by such federal regulatory agency may be deemed sufficient compliance with the system prescribed by the commission; provided, however, that the commission may prescribe forms of books, accounts, records and memoranda covering information in addition to that required by such federal regulatory agency, where such do not conflict with those prescribed by such federal regulatory agency.

The commission shall, after hearing held upon reasonable notice, from time to time ascertain, determine and by order fix the proper and adequate rates and methods of depreciation, amortization or depletion of the several classes of property of each such public utility or class of public utilities which is subject to regulation by the provisions of this chapter. The commission shall, after hearing had upon reasonable notice, by order in writing require every such public utility or class of public utilities, the rates of which are subject to regulation by the provisions of this chapter, to carry a reasonable and adequate depreciation account in accordance with such rates and methods and with such rules, regulations, orders and forms of accounts as the commission shall prescribe to the extent allowed by the Internal Revenue Code and the rules and regulations promulgated thereunder. Such public utility shall conform its depreciation accounts to the rates and methods so ascertained, determined and fixed. Such rates, methods and accounts shall be utilized uniformly and consistently throughout the rate setting and appeal proceedings.

In determining the allocation of tax savings derived from application of such methods as liberalized depreciation and amortization and the investment tax credit, the commission shall equitably balance the interests of present and future customers and shall apportion such benefits between consumers and the public utilities accordingly, to the extent allowed by the Internal Revenue Code and the rules and regulations promulgated thereunder. Where any portion of the investment tax credit has been retained by a public utility, that same amount shall be deducted from the original cost of the facilities or other addition to the rate base to which the credit applied, to the extent allowed by the Internal Revenue Code and the rules and regulations promulgated thereunder.

If the public utility is a member of an affiliated group that is eligible to file a consolidated income tax return, and if it is advantageous to the public utility to do so, income taxes shall be computed as though a consolidated return had been so filed and the utility had realized its fair share of the savings resulting from the consolidated return, unless it is shown to the satisfaction of the commission that it was reasonable to choose not to consolidate returns. The amount of income taxes saved by a consolidated group of which a public utility is a member by reason of the elimination in the consolidated return of the intercompany profit on purchases by the public utility from an affiliate shall be applied to reduce the cost of the property or services so purchased.

The commission shall require such public utilities to maintain a reasonably close relationship between their reserve for depreciation and the actual accumulated depreciation, and if such reasonably close relationship is not present, the commission may and should review and make appropriate changes in the annual charge to operating expenses on account of depreciation.

The commission, in determining the allowance for materials, equipment or services to be included in costs of operations for rate-making purposes, shall disallow any unreasonable profit made in the sale of materials, equipment or services supplied for any such public utility by any firm or corporation owned or controlled directly or indirectly by such utility or any affiliate, subsidiary, parent or holding company, associate or any corporation whose controlling stockholders are also controlling stockholders of such utility. The burden of proof shall be on the public utility to prove that no unreasonable profit is involved.

HISTORY: Codes, 1942, § 7716-07; Laws, 1956, ch. 372, § 7; Laws, 1983, ch. 467, § 13, eff from and after passage (approved April 6, 1983).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

JUDICIAL DECISIONS

1. In general.

This section vests the commission with rather broad powers to establish a system of accounts and accounting for public utilities, and the system of accounting to be established is partly a legislative question. Mississippi Public Service Com. v. Hinds County Water Co., 195 So. 2d 71, 1967 Miss. LEXIS 1428 (Miss. 1967).

This provision gives the state public service commission power under some circumstances to supplement or modify the Federal Commerce Commission’s requirements for utilities subject to federal regulation. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

Public service commission did not err in disallowing a loss, occasioned by the abandonment of a plant when an independent telephone company switched from the switchboard system to a modern dial system, to be amortized as a future operating expense, where there was substantial evidence to support that decision. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 150.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-33. Rates, classifications and service of utilities.

  1. No rate made, deposit or service charge demanded or received by any public utility shall exceed that which is just and reasonable. Such public utility, the rates of which are subject to regulation under the provisions of this article, may demand, collect and receive fair, just and reasonable rates for the services rendered or to be rendered by it to any person. Rates prescribed by the commission shall be such as to yield a fair rate of return to the utility furnishing service, upon the reasonable value of the property of the utility used or useful in furnishing service.
  2. Such utility shall furnish adequate, efficient and reasonable service, and may establish reasonable rules governing the conduct of its business and the conditions under which it shall be required to render service. The commission may, after hearing upon reasonable notice had, upon its own motion or upon complaint, ascertain and fix just and reasonable standards, regulations and practices of service which are to be furnished, imposed, observed and followed by all public utilities. The commission may require the service, rules and regulations of each public utility to be filed with the commission and subjected to its approval or to such changes therein as the commission reasonably may require. Practices required or sanctioned pursuant to the provisions hereof shall supersede other requirements of law.
  3. Such utility may employ in the conduct of its business suitable and reasonable classifications of its service, patrons, rates, deposits and service charges. The classification may, in any proper case, take into account the nature of the use, the quantity and quality used, the time when used, the purpose for which used, and any other reasonable consideration.

HISTORY: Codes, 1942, § 7716-08; Laws, 1956, ch. 372, § 8.

Cross References —

Provisions prohibiting the giving of free transportation or telegraph or telephone service to candidates for public office, inter alia, see §23-15-891.

Employment and duties of rate expert and his assistant, see §77-1-17.

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

JUDICIAL DECISIONS

1. Rate-making, generally.

2. Fair return.

3. Items considered or excluded in fixing rates.

4. Evidence.

5. Burden of proof.

6. Power of court.

1. Rate-making, generally.

Public Service Commission erred in granting rate increases for a power company because it failed to comply with the Base Load Act and exceeded its authority granted by the Act; by stipulation, the Commission improperly deferred prudency hearings, which were a prerequisite to granting an increase in rates, and in the absence of prudency hearings, a rate could not be arbitrarily declared as fair, just, and reasonable. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Mississippi Public Service Commission (PSC) properly denied a telecommunications company’s requested rate increase for telephone services on the ground that the company failed to provide evidence that the rate increase was just and reasonable pursuant to Miss. Code Ann. §77-3-33(1) because the PSC’s interpretation of Miss. Code Ann. §77-3-35(4) was consistent with the plain language of the statute, and the PSC retained full regulatory authority over switched access service and single-line flat rate voice communication service; the PSC did not improperly utilize a “rate of return” methodology to determine the company’s requested rate increase because it did not base its conclusion upon the lack of a cost of service study but merely listed several types of possible evidence the company could have submitted to support its rate increase request. Bellsouth Telcomms. v. Miss. PSC, 18 So.3d 199, 2009 Miss. LEXIS 378 (Miss. 2009).

Mississippi Public Service Commission’s (Commission) order regarding an increase in rates for water service provided by the company was not supported by substantial evidence and was contrary to the manifest weight of the evidence, Miss. Code Ann. §77-3-59; in fixing the fate, the Commission did not evidence its expertise by incorporating in its order cogent reasons for its decision based on a finding of facts pertinent to the particular inquiry before it. Total Envtl. Solutions, Inc. v. Miss. PSC, 988 So. 2d 372, 2008 Miss. LEXIS 337 (Miss. 2008).

For utility rate-making purposes, public is entitled to demand that no more be exacted from ratepayers than utility services are worth. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

For utility rate-making purposes, ‘fair rate’ is one which, under prudent and economical management, is just and reasonable to both the public and utility. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

Public Service Commission’s (PSC) denial of any rate increase to water utility was unsupported by substantial evidence and was contrary to manifest weight of the evidence in utility rate case, warranting reversal and remand to Commission for determination of amount of rate increase, despite Commission’s finding that utility was not providing adequate service; denial of rate increase was apparently punitive, utility had been receiving the same base monthly rate from customers for five years, experts testified that, despite competent economic management, existing base rate resulted in ongoing losses to utility, even intervenors conceded that utility was entitled to some increase, and services that utility provided were worth more than present base rate. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

For rate-making purposes, water utility had to, at a minimum, receive enough to enable it to render efficient and continuous service. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

The statutory requirement of just and reasonable rates is satisfied when the rates are cost-based. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 387, 1989 Miss. LEXIS 10 (Miss. 1989).

Public Service Commission’s (PSC) adoption of a performance evaluation plan for determining a power company’s rates through a formula that was subject to quarterly adjustments of costs of utility services based on revenue and expense figures supplied by the utility violated the state’s public policy and statutory scheme because the plan was a complete abrogation by the PSC of its statutory responsibilities and a relinquishment of control to the very entity the PSC is charged by law to regulate. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 367, 1989 Miss. LEXIS 12 (Miss. 1989).

The reasonableness of rates charged, or to be charged, by a public utility is not determined by definite rules and legal formulae, but is a question of fact requiring the exercise of sound discretion and independent judgment in each case. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 367, 1989 Miss. LEXIS 12 (Miss. 1989).

Terms of contract between telephone company and its subscribers are supplied by tariffs which have been duly filed and approved by Mississippi Public Service Commission, and claim alleging wrongful disconnection of telephone services must necessarily involve breach of subscriber’s tariff or contract. South Cent. Bell v. Epps, 509 So. 2d 886, 1987 Miss. LEXIS 2594 (Miss. 1987).

On appeal by a public telephone company from an order of the Public Service Commission denying its proposed rate increase and allowing only a 10% overall increase, the chancellor properly exercised his discretion in finding, pursuant to §77-3-67(4), that the denial of the higher increase sought by the telephone company was not supported by substantial evidence and was against the manifest weight of undisputed evidence, where the commission failed to fix a rate base as required by §77-3-43, failed to fix a rate of return related to a legally formulated rate base as required by §§77-3-33(1) and77-3-39, and arbitrarily fixed a 10% increase in rates when it appeared certain that compliance with that increase would result in a substantial loss; however, the chancellor erred in fixing a rate base and a rate of return, even though he arrived at amounts warranted by the proof, as §77-3-67(4) provides instead for a remand of the cause to the commission. Mississippi Public Service Com. v. Hughes Tel. Co., 376 So. 2d 1074, 1979 Miss. LEXIS 2512 (Miss. 1979).

Chancery court properly reversed an order of the Public Service Commission denying any rate increases to a utility company but approving use of a new fuel adjustment clause where, inter alia, the schedule of rate increases and the fuel adjustment clause were inseparable parts of a package, where the company’s bond interest and preferred dividend coverage had dropped to a critical level, where the company’s immediate construction program required substantial amounts of new capital, and where the Commission neither made findings of fact to support its order nor gave reasons for its conclusion. Smith v. State, 336 So. 2d 769, 1976 Miss. LEXIS 1535 (Miss. 1976).

Public service commission is not required by statute to use any particular formula in determining the reasonable value of property of a public utility for rate-making purposes, but the rates prescribed shall be such as to yield a fair rate of return upon the reasonable value of the property used and useful in furnishing service. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

No public utility has a vested right to any particular method of valuation for rate-making purposes. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Legislature, by enactment of Chapter 372, Laws of 1956, did not intend to impose upon the public service commission a requirement that the so-called “fair value” formula, with its emphasis upon reproduction cost new, be adopted as a measure of value, in determining the reasonable value of the utility’s property for rate-making purposes. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

The reasonableness or unreasonableness of public utility rates is not to be determined by any definite formula, and is not measurable with any great degree of exactness, but is a question of fact calling for the exercise of sound discretion, good sense, and a fair, enlightened and independent judgment. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

2. Fair return.

A fair return, to which a public utility is entitled, is one which, under prudent and economical management, is just and reasonable both to the public and to the utility. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Rates which enable a telephone company to pay the interest on its debt capital and to compensate stockholders on the basis of an earnings-price ratio of 6.30 per cent, and which produce a return of 4.96 to 5.08 per cent on the reasonable value of its property, are reasonable. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

3. Items considered or excluded in fixing rates.

The rate of a regulated public utility is not to be established by an arbitrary percentage of value of property used by such utility in its operation as sole basis for rate; rates should be fixed by taking into consideration value of such property along with such other factors as operating expenses, service on debt, capital costs and capital structure under prudent and economical management; and another fact for determination is whether revenue produced by such rate will enable utility to secure additional funds for expansion of facilities needed to serve its certificated area, and at the same time, enable it to maintain coverage required by law. Mississippi Power Co. v. Mississippi Public Service Com., 291 So. 2d 541, 1974 Miss. LEXIS 1727 (Miss. 1974), limited, 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

Diminution of returns on the other enterprises has a bearing upon the reasonableness of rates permitted to a public utility. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

The exclusion of the cost of additions under construction in determining a telephone company’s rate base is proper. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Items of materials and supplies, and of cash requirements, are properly excluded from a utility’s rate base where the amount of such items is less than its reserves for taxes. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Where the low debt ratio of a utility puts an undue burden on rate-payers, the commission may adopt a hypothetical capital structure which will be less burdensome, for use in the determination of earnings requirements. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

In determining the sufficiency of a rate of return, operating expenses, including so much of the salaries of officers as is just and reasonable, must be considered. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

4. Evidence.

Classification of consumer rates of an electric utility is not discriminatory per se under §77-3-33, and where the utility presented testimony that totally electric customers usually received a larger quantity, rendering the cost of service to them less expensive, the Mississippi Public Service Commission did not err in finding that the utility’s rate classifications of regular residential, electric water heating, and total electric, were neither arbitrary nor capricious. State ex rel. Allain v. Mississippi Public Service Com., 435 So. 2d 608, 1983 Miss. LEXIS 2502 (Miss. 1983).

In considering the various determinants of a rate base, it is within the province of the commission to determine the weight to be given to evidence, the reliability of estimates and opinions, and the credibility of witnesses. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

In determining a fair rate of return upon the reasonable value of property used by or useful to the public utility in furnishing service, the commission may properly consider evidence of reproduction cost, but is not bound to adopt as such value such cost less actual depreciation. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Public service commission is not compelled to accept the opinion evidence of a public utility’s employees as proof of the reasonable value of the utility’s property for rate-making purposes, if, in the opinion of the commission, that evidence is conjectural, unrealistic and unreliable. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

5. Burden of proof.

The burden of producing clear and convincing proof is on a utility asserting that existing rates are confiscatory. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

6. Power of court.

Since the function of rate making is purely legislative in character, a court is without power to fix the rates to be charged by public utilities, but may restrain the imposition of confiscatory rates, or, under the Public Utility Act, determine whether rates as fixed are supported by substantial evidence, or within the other statutory restrictions set forth in Code 1942, § Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

RESEARCH REFERENCES

ALR.

Civil Rights: racial or religious discrimination in furnishing of public utilities services or facilities. 53 A.L.R.3d 1027.

Charitable contributions by public utility as part of operating expense. 59 A.L.R.3d 941.

Validity of imposition, by state regulation, of natural gas priorities. 84 A.L.R.3d 541.

Amount paid by public utility to affiliate for goods or services as includible in utility’s rate base and operating expenses in rate proceeding. 16 A.L.R.4th 454.

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.

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 60, 61 et seq., 165, 166.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 129, 133, 135 (complaints, petitions, or declarations in actions involving service of public utilities).

CJS.

73B C.J.S., Public Utilities §§ 14-17 et seq.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-35. Regulation of rates and charges generally; approval of certain contracts of utilities; regulation of provision of telecommunication services; adoption of alternative methods of regulation; Public Service Commission authorized to regulate only rates, terms and conditions of certain switched access services and single-line flat rate voice communication services; incumbent local exchange carrier to provide primary single-line flat rate voice communication service to premises of permanent residence or business within its franchised service territory if cost to requesting party does not exceed certain amount; commission to retain exclusive original jurisdiction over customer complaints for services continuing to be regulated; certain telecommunication utilities required only to file financial or service quality information required to be filed with Federal Communications Commission.

  1. Subject to the provisions of subsections (2) and (4) of this section, under such reasonable rules and regulations as the commission may prescribe, every public utility, as to the rates which are subject to regulation under the provisions of this article, shall file with the commission, within such time and in such form as the commission may designate, schedules showing such rates and charges established by it and collected and enforced, or to be collected or enforced within the jurisdiction of the commission. The utility shall keep copies of such schedules open to public inspection under such reasonable rules and regulations as the commission may prescribe.

    No such public utility shall directly or indirectly, by any device whatsoever, or in anywise, charge, demand, collect or receive from any person or corporation for any service rendered or to be rendered by such public utility a greater or less compensation than that prescribed in the schedules of such public utility applicable thereto then filed in the manner provided in this section, and no person or corporation shall receive or accept any service from any such public utility for a compensation greater or less than prescribed in such schedules.

    Utilities selling commodities or rendering any service to cooperatives, municipalities or other nonprofit organizations, shall, at the order of the commission, file schedules of such rates and charges for information purposes only.

    The commission may provide, by rules and regulations to be adopted by it, the following:

    1. That utilities may contract with a manufacturer that is not a utilityfor furnishing the services or commodities described in Section 77-3-3(d) (i), (ii)and (iii) for use in manufacturing;
    2. That utilities described in Section 77-3-3(d)(i) alsomay contract with a customer that has a minimum yearly electric consumptionof two thousand five hundred (2,500) megawatt hours per year or greaterfor furnishing the services or commodities described in Section 77-3-3(d)(i); and
    3. That utilitiesdescribed in Section 77-3-3(d)(ii) alsomay contract with a customer that has a minimum yearly consumptionof eight million five hundred thousand (8,500,000) cubic feet of gas per year or greater for furnishing the services or commodities described in Section 77-3-3(d)(ii).

      These contracts may be entered into without reference to the rates or other conditions which may be established or fixed pursuant to other provisions of this article. Such regulations shall provide that before becoming effective any such contract shall be approved by the commission.

    1. The Legislature recognizes that the maintenance of universal telephone service in Mississippi is a continuing goal of the commission and that the public interest requires that the commission be authorized and encouraged to formulate and adopt rules and policies that will permit the commission, in the exercise of its expertise, to regulate and control the provision of telecommunications services to the public in a changing environment where competition and innovation are becoming more commonplace, giving due regard to the interests of consumers, the public, the providers of telecommunications services and the continued availability of good telecommunications service. The commission is authorized to issue more than one (1) competing certificate of public convenience and necessity to provide local exchange telephone service in the same geographical area; provided, that the issuing of any such additional certificates shall not otherwise affect any certificate of public convenience and necessity heretofore issued to any provider of such services.

      The commission shall adopt all rules and regulations necessary for implementing this subsection (2)(a).

      The commission may apply standards adopted by the Federal Communications Commission that are generally applicable to companies that are designated and operate as eligible telecommunications carriers, pursuant to 47 USCS Section 214(e). The commission may exercise its authority to ensure that these carriers, including commercial mobile radio service providers that receive federal eligible telecommunications status, comply with those standards, only to the extent permitted by and consistent with applicable federal laws and regulations.

      The commission retains the authority to issue orders to implement its rules, regulations and the provisions of this chapter, including the authority to grant and modify, impose conditions upon, or revoke a certificate.

    2. The commission may, on its own motion or at the request of any interested party, enter an order, after notice and opportunity for hearing, determining and directing that, in the provision of a service or facility by a utility of the type defined in Section 77-3-3(d)(iii), competition or other market forces adequately protect the public interest, or that a service or facility offered by the utility is discretionary, and that the public interest requires that the utility’s rates and charges for such service or facility shall not thereafter be subject to regulation by the commission.
    3. In making its determination whether the rates and charges for a service or facility shall not be subject to regulation by the commission, the commission may consider individually or collectively:
      1. Whether the exercise of commission jurisdiction produces tangible benefits to the utility’s customers that exceed those available by reliance on market forces or other factors;
      2. Whether technological changes, competitive forces, discretionary nature of the service or facility, or regulation by other state and federal regulatory bodies render the exercise of jurisdiction by the Mississippi commission unnecessary or wasteful;
      3. Whether the exercise of commission jurisdiction inhibits a regulated utility from competing with unregulated providers of functionally similar telecommunications services or equipment;
      4. Whether the existence of competition tends to prevent abuses, unjust discrimination and extortion in the charges of telecommunications utilities for the service or facility in question;
      5. The availability of the service or facility from other persons and corporations; or
      6. Any other factors that the commission considers relevant to the public interest.

      In making the determination as above set forth, the commission may specify the period of time during which the utility’s rates and charges for the service or facility shall not thereafter be subject to regulation. Likewise, after notice and opportunity for hearing, the commission may revoke a determination and direction made under this section, when the commission finds that commission regulation of the utility’s rates and charges for the service or facility in question is necessary to protect the public interest.

    1. The commission is authorized to consider and adopt alternative methods of regulation proposed by a utility of the type defined in Section 77-3-3(d)(i), (ii) or (iii) to establish rates for the services furnished by such utility that are fair, just and reasonable to the public and that provide fair, just and reasonable compensation to the utility for such services.
    2. For purposes of this subsection, the phrase “alternative methods of regulation” means the regulation of utility rates and charges by methods other than the rate base or rate of return method of regulation set forth in other provisions of this article.
    1. Notwithstanding any other provisions of this article or any other statute to the contrary, and consistent with the provisions herein, for those public utilities of the type defined in Section 77-3-3(d)(iii) that are subject to the competitive requirements set forth in 47 USCS Section 251 or those public utilities that have waived a suspension granted by the commission of the requirements of 47 USCS Section 251(b) and (c) as authorized by 47 USCS Section 251(f)(2), the Legislature has determined that, in the provision of all services, other than switched access service, competition or other market forces adequately protect the public interest. Therefore, subject to paragraph (d) of this subsection, the commission no longer has jurisdiction over the services, other than the provision of intrastate switched access service, provided by such public utilities.
    2. For those public utilities of the type defined in Section 77-3-3(d)(iii) that have been granted a suspension by the commission of the requirements of 47 USCS Section 251(b) and (c) as authorized by 47 USCS Section 251(f) (2), the commission, at the request of such public utility, shall enter an order, after notice and opportunity for hearing, determining that such public utility’s provision of service will be subject to the same level of regulation as provided in paragraph (a) of this subsection, but only after the commission determines that such public utility has satisfied one (1) of the following conditions:
      1. Has executed interconnection agreements which have been approved by the commission to the extent required under law with two (2) or more local exchange carriers unaffiliated with such public utility;
      2. Offers for resale at wholesale rates, pursuant to 47 USCS Section 251(c)(4)(A) and (B), such public utility’s retail telecommunications services provided to subscribers who are not telecommunications carriers;
      3. At least two (2) competitive telecommunications providers unaffiliated with such requesting public utility are offering service to such public utility’s subscribers; or
      4. Has experienced a material reduction in access lines or minutes of use in two (2) consecutive years.

      A waiver of suspension under paragraph (a) of this subsection shall be effective upon written notification to the commission. The initial rate utilized by such public utility shall be the rate for such service in effect at the time of such waiver under this section. The commission, upon request of the public utility, may return such public utility to a form of regulation permitted under this section.

    3. Subject to paragraph (d) of this subsection, a public utility of the type defined in Section 77-3-3(d)(iii) which is regulated under the provisions of paragraph (a) of this subsection shall not be subject to any rule, regulation or order promulgated by the commission with regard to retail services. The provisions of Section 77-3-23 shall not apply to such public utility regulated under the provisions of paragraph (a) of this subsection.
    4. Nothing in this chapter shall be construed to affect the duties of an incumbent local exchange carrier arising under 47 USCS Sections 251 and 252 and the Federal Communications Commission’s regulations implementing these sections, or the commission’s authority to approve, arbitrate and enforce interconnection agreements and to resolve disputes pursuant to 47 USCS Sections 251 and 252 and the Federal Communications Commission’s regulations implementing these sections or any other applicable federal law or regulation. The commission shall exercise its jurisdiction in its role as a dispute resolution forum to hear complaints between certificated carriers, including complaints to prohibit anti-competitive practices and with respect to enforcement or modification of any wholesale self-effectuating enforcement mechanism plan in place as of July 1, 2011, and to issue orders to resolve such complaints, provided that such actions are consistent with federal telecommunications law. The commission shall interpret and apply federal, not state, substantive law. The commission shall adjudicate and enforce such claims in accordance with state procedural law and rules. No claim shall be brought to the commission as to which the FCC has exclusive jurisdiction. All complaints brought between carriers pursuant to this section shall be resolved by final order of the commission within one hundred eighty (180) days of the filing of the complaint.
    5. The commission shall retain exclusive original jurisdiction over customer complaints for those services that continue to be regulated. For services no longer regulated, the commission shall have exclusive original jurisdiction to interpret and enforce the terms and conditions of customer service agreements for telecommunications services, but it shall not alter, set aside or refuse to enforce the rates, terms and conditions thereof, either directly or indirectly. No other party shall be allowed to participate in any such complaint proceeding, except for the customer, legal counsel or other representative of the customer, or the public utility involved.
    6. A public utility of the type defined in Section 77-3-3(d)(iii) which is regulated under the provisions of paragraph (a) of this subsection shall not be required to file financial, service quality or other information with the commission. The calculation of the public utility regulatory tax established in Section 77-3-87 shall be based upon ninety thousandths of one percent (90/1000 of 1%) per year of the gross revenues from the intrastate operations of such public utility which is subject to regulation under the provision of paragraph (a) of this subsection. In addition, such public utility shall only be required to adhere to billing for retail telecommunications services in compliance with the federal truth in billing regulations prescribed by the Federal Communications Commission.
    7. 1. To terminate service with the service provider by contacting such service provider within the thirty-day time period, in which case the customer shall have the right to pay off the account in the same manner and under the same rates, terms and conditions as set forth in the written customer service agreement provided to the customer, which written customer service agreement shall relate back in its entirety to the date of a new customer’s request for service or the date the agreement was sent to an existing customer, as applicable, and shall be in effect until termination through pay off; or

      2. To use the services of the service provider or to otherwise continue the account with the service provider after the thirty-day time period has elapsed, either of which shall constitute the customer’s assent to all the rates, terms and conditions of the written customer service agreement. The customer service agreement shall be deemed received three (3) business days after deposit in the United States mail, first-class delivery.

      1. In order to transition to the changes effectuated by paragraph (a) of this subsection, the rates, terms and conditions for products and services no longer subject to regulation by the commission which were in effect with a specific term immediately prior to July 1, 2006, shall remain in effect for the duration of the specific term as to customers who subscribed to such products or services prior to July 1, 2006. If no term applied to such products or services at the time such customer subscribed to such products or services, then the rates, terms and conditions governing such products or services shall remain in effect until a written customer service agreement becomes effective as described in subparagraph (ii) of this paragraph (g).
      2. Except as provided in subparagraph (i) of this paragraph (g), the service provider shall offer existing and new customers a written customer service agreement, which in the case of new customers shall be delivered no later than thirty (30) days after the initiation of service. The customer service agreement shall include a provision advising the customer that he has thirty (30) days from receipt in which to elect:
      3. If any service provider desires to modify in any respect any rates, terms or conditions of a customer service agreement, it shall provide at least thirty (30) days’ prior written notice of the modification and the proposed effective date to the customer. The customer service agreement shall include a provision advising the customer that he has the option:

      1. To terminate service with the service provider by contacting such service provider prior to the effective date, in which case the customer shall have the right to pay off the account in the same manner and under the same rates, terms and conditions as then in effect; or

      2. To use the services of the service provider or to otherwise continue the account with the service provider on or after the effective date, either of which shall constitute the customer’s assent to the modified written customer service agreement. The customer service agreement shall be deemed received three (3) business days after deposit in the United States mail, first-class delivery.

    8. Nothing herein shall change the obligation of those public utilities described in Section 77-3-3(d)(iii) to obtain a certificate of public convenience and necessity pursuant to this chapter.

HISTORY: Codes, 1942, § 7716-09; Laws, 1956, ch. 372, § 9; Laws, 1988, ch. 338; Laws, 1994, ch. 315, § 1; Laws, 1995, ch. 348, § 1; Laws, 1996, ch. 304, § 1; Laws, 2006, ch. 313, § 1; Laws, 2012, ch. 447, § 2, eff from and after July 1, 2012.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors in the last paragraph in (4)(b), by substituting “may return such public utility to a form of regulation permitted under this section” for “may return such public utility to return to a form of regulation permitted under Section 77-3-35.” The Joint Committee ratified the correction at its July 22, 2010, meeting.

Amendment Notes —

The 2006 amendment, in (1), substituted “subsections (2) and (4)” for “subsection (2)” and made minor stylistic changes in the first sentence, and deleted “Utilities of the same type as herein covered, engaged in rendering interstate service to and from points and places in the state, shall file with the commission tariffs of rates and charges of such and rates and charges affecting service to or from points and places in the state. Also,” at the beginning of the third paragraph; deleted “Notwithstanding any provisions of this chapter or any other statute” at the beginning of (2)(b); deleted “Notwithstanding any other provisions of this article or any other statute to the contrary” at the beginning of (3)(a); and added (4).

The 2012 amendment added the next-to-last paragraph of (2)(a); in (4)(a), deleted “and single-line flat rate voice communication service” preceding “competition or other market forces” in the first sentence, rewrote the second sentence, and deleted the former last sentence which read: “The retail rates for such single-line flat rate voice communication service beginning January 1, 2007, and every succeeding January 1 may only be increased during the calendar year by an amount that does not exceed the rates for such service on January 1 of the previous year, plus the increase in the Consumer Price Index for all Urban Consumers as reported by the United States Department of Labor, Bureau of Labor Statistics”; and rewrote (4)(c), (d), and (f).

Cross References —

Employment and duties of rate expert and his assistant, see §77-1-17.

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Interstate gas pipeline law not de-regulating natural gas or electric power public utility, see §77-11-311.

JUDICIAL DECISIONS

1. In general.

2. Rate-making, generally.

3. Regulatory authority.

1. In general.

Power companies are not entitled or authorized to place a power line underground unless the customer agrees to pay for such. However, a power company may violate its standard of care if it fails to place high voltage lines underground at its own expense where it is feasible and practical. Ware v. Entergy Miss., Inc., 887 So. 2d 763, 2003 Miss. LEXIS 876 (Miss. 2003).

A county board of supervisors in contracting with South Central Bell for telephone service for the county courthouse was not required to resort to public bidding where South Central Bell, as a public utility, was subject to state regulation and was only permitted to charge rates that had been fixed and determined according to the tariffs which it had been required to file with the Mississippi Public Service Commission; however, had the board chosen to purchase or lease equipment from an independent, unregulated equipment supplier, the contract would then have been required to be let on competitive bids because the protection afforded to the public by regulation of South Central Bell would then have been absent. Telcom Systems, Inc. v. Lauderdale County Bd. of Supervisors, 405 So. 2d 119, 1981 Miss. LEXIS 2224 (Miss. 1981).

This section does not authorize the issuance of permission to serve a manufacturer within the service area of another electric company because the manufacturer prefers such service. Capital Electric Power Asso. v. Mississippi Power & Light Co., 240 Miss. 139, 125 So. 2d 739, 1961 Miss. LEXIS 443 (Miss. 1961).

2. Rate-making, generally.

Mississippi Public Service Commission (PSC) properly denied a telecommunications company’s requested rate increase for telephone services on the ground that the company failed to provide evidence that the rate increase was just and reasonable pursuant to Miss. Code Ann. §77-3-33(1) because the PSC’s interpretation of Miss. Code Ann. §77-3-35(4) was consistent with the plain language of the statute, and the PSC retained full regulatory authority over switched access service and single-line flat rate voice communication service; the PSC did not improperly utilize a “rate of return” methodology to determine the company’s requested rate increase because it did not base its conclusion upon the lack of a cost of service study but merely listed several types of possible evidence the company could have submitted to support its rate increase request. Bellsouth Telcomms. v. Miss. PSC, 18 So.3d 199, 2009 Miss. LEXIS 378 (Miss. 2009).

3. Regulatory authority.

By the very terms of Miss. Code Ann. §77-3-35(4), the statute’s revocation of regulatory authority does not apply to switched access service and single-line flat rate voice communication service because the statute specifically reserves to the Mississippi Public Service Commission (PSC)regulatory authority over those two types of service; nothing in the statute, either implicitly or explicitly, limits the PSC’s regulatory function to mere ministerial approval or disapproval after “doing the math,” and the cap on the limit of annual increases reads as exactly that: a cap on the amount retail rates for the two particular services may be increased in a given year. Bellsouth Telcomms. v. Miss. PSC, 18 So.3d 199, 2009 Miss. LEXIS 378 (Miss. 2009).

OPINIONS OF THE ATTORNEY GENERAL

Requiring “enhancements” to electric service provided by public utilities, such as steel versus wood poles and underground versus above-ground lines, constitutes a form of ratemaking which is regulated by the Mississippi Public Service Commission. Although a municipality may require lines to be located underground or to be constructed with certain materials, same is subject to the rate schedules approved by MPSC. Sorrell, Mar. 9, 2004, A.G. Op. 04-0099 modified. Waites, Nov. 9, 2004, A.G. Op. 04-0446.

RESEARCH REFERENCES

ALR.

Validity and construction of municipal ordinances regulating community antenna television service (CATV). 41 A.L.R.3d 384.

Community antenna television systems (CATV) as subject to jurisdiction of state public utility or service commission. 61 A.L.R.3d 1150.

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 169.

74 Am. Jur. 2d, Telecommunications §§ 11, 12, 19- 25, 28- 30, 32, 157-159, 162-180.

15 Am. Jur. Legal Forms, Public Utilities Forms 215:24 et seq. (electric service rates).

CJS.

73B C.J.S., Public Utilities §§ 44-103, 265, 269-273, 274, 279-284.

Lawyers’ Edition.

Governmental regulation of public utility as violating utility’s First Amendment right to free speech or press–Supreme Court cases. 89 L. Ed. 2d 930.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-36. Recovery of costs of political advertising from ratepayers prohibited; recovery of costs of promotional or institutional advertising regulated; definitions.

  1. No public utility, the rates of which are subject to regulation by the commission, shall be permitted to recover from its ratepayers any direct or indirect expenditure made by such utility for political advertising as defined herein. For the purposes of this paragraph, “political advertising” means any advertising for the purpose of influencing public opinion with respect to legislative, administrative or electoral matters, or with respect to any controversial issue of public importance.
  2. Except to the extent authorized by general regulation of the commission, no public utility, the rates of which are subject to regulation by the commission, shall be permitted to recover from its ratepayers any direct or indirect expenditure made by such utility for promotional or institutional advertising as defined herein. For the purposes of this paragraph, “promotional advertising” means any advertising for the purpose of encouraging any person to select or use the service or additional service of any utility or the selection or installation of any appliance or equipment designed to use such utility’s service, and “institutional advertising” means any advertising for the purpose of promoting the general image of a public utility in the community.
  3. The commission shall establish by general regulation the types of promotional and institutional advertising which a public utility shall be permitted to recover as cost of service from the ratepayers and the reasonable cost thereof.

HISTORY: Laws, 1983, ch. 467, § 14, eff from and after passage (approved April 6, 1983).

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

§ 77-3-37. Changes in rates.

  1. No public utility shall make any change in any rate which has been duly established under this chapter, except as provided in this chapter. A public utility seeking a change in any rate or rates shall file with the secretary of the commission and the executive director of the public utilities staff a notice of intent to change rates. The commission may promulgate rules and regulations providing for notice to customers of the filing by any public utility for a rate increase. Routine changes in rates and schedules that do not involve any substantial revenue adjustment may go into effect after thirty (30) days’ notice to the commission or after such shorter period of notice as the commission, for good cause shown, may allow. In all other cases, the notice of intent shall contain a statement of the changes proposed to be made in the rates then in force, the new level of revenues sought, the reasons for the proposed changes and the date proposed for such changes to become effective, which date shall not be less than thirty (30) days after the date of filing. The proposed changes may be shown by filing new schedules, by plainly indicating the changes upon schedules filed and in force at the time and kept open to public inspection or by such other manner as will clearly indicate the rates to be changed and the rates proposed. All direct testimony, exhibits and other information which any utility will rely upon in support of the proposed changes shall be filed concurrently with the filing of the notice of intent. Such other data or documentation as the commission shall request shall be supplied by such utility.
  2. The commission shall establish by rule and regulation a standard requirement list of documentation to be filed with or to be included in every notice of intent. With respect to any notice of intent involving a major change in rates as defined in subsection (8) of this section, the standard requirement list in each case shall include:
    1. A copy of its charter or articles of incorporation, if not already on file with the commission;
    2. A schedule of the present rates, fares, tolls, charges or rentals in effect, and the changes it is desired to make;
    3. A balance sheet of the utility prepared as of the last day of the latest month in which data shall be readily available;
    4. An actual operating statement setting forth revenue and expenses by account numbers for the twelve (12) months ending as the date of the balance sheet applicable to the utility filing the notice of intent;
    5. A pro forma operating statement in the same form as the actual operating statement showing estimate of revenue and expenses for the twelve-month period beginning with the effective date of the changed rates (i) without giving effect to the changed rates and (ii) giving effect to the changed rates;
    6. A pro forma operating statement in the same form as the actual operating statement for the same period giving effect to the proposed changes in rates and adjusted for known changes in the cost of operations;
    7. A statement showing the number of stations or customers by classes affected by the proposed changes in rates, the actual revenue under the old rates arising from each class and the annual amount of the proposed increase or decrease applicable to each class;
    8. A description of the utility’s property, including a statement of the original cost of the property and the cost to the utility;
    9. A statement in full of the reasons why the change in rates is desired so that the commission may clearly see the justification therefor;
    10. The amount and kinds of stock authorized;
    11. The amount and kinds of stock issued and outstanding;
    12. The number and amount of bonds authorized and the number and amount issued;
    13. The rate and amount of dividends paid during the five (5) previous fiscal years, and the amount of capital stock on which dividends were paid each year;
    14. An analysis of surplus covering the period from the close of the last calendar year for which an annual report has been filed with the commission to the date of the balance sheet attached to the notice.
  3. The commission may, by rule and regulation, require the utility filing a notice of intent to change rates to supplement the above data with such other information as the commission or the public utilities staff may reasonably request.
  4. Unless the commission, upon application by a utility and for good cause shown, shall enter an order waiving one or more of the following requirements, then whenever a public utility files a notice of intent wherein an increase in the level of annual revenues in the amount of at least Fifteen Million Dollars ($15,000,000.00) is sought, the standard requirement list of documentation shall include:
    1. Guidelines or directives as to the public utility’s presentation provided by a controlling affiliate, parent or holding company;
    2. Marginal cost data;
    3. Alternate rate design;
    4. Conservation effectiveness;
    5. A properly prepared, complete, detailed lead-lag study for the test year for the total company, Mississippi retail, other retail jurisdictions and Federal Energy Regulatory Commission wholesale rates in support of the public utility’s total working capital requirement contained therein, including all working papers in support thereof;
    6. Direct testimony proposed to be offered at a hearing.
  5. The notice of intent for major changes in rates as defined in subsection (8) of this section shall state the test period adopted by the public utility in support of its proposed rate changes, which may be a twelve-month period beginning with the proposed effective date of the rates proposed in the notice. For the purpose of expediting the regulatory process, all public utilities shall keep the commission advised of their plans or needs for future requests for major rate changes.
  6. Within five (5) days after the notice of intent has been filed, the utility shall serve a copy of the notice of intent without documentation on all parties of record in its last proceeding in which a major change in rates was sought, and shall file a certificate of service with the commission. Thereafter, a copy of all material filed by the utility shall be furnished by the utility to those persons as may be provided for by the commission’s rules and regulations.
    1. When the rates in a notice of intent are suspended by commission order, the commission may issue a scheduling order which establishes deadlines for submitting data requests, responding to data requests, conducting prehearing conferences and hearings and disposing of other matters necessary for the orderly disposition of the case.
    2. The public utilities staff and all intervenors or protestants shall file all direct testimony, exhibits and other information which is to be relied upon regarding the proposed changes within eighty (80) days from the filing of such notice of intent. At the time of filing direct testimony, exhibits and other information, each party filing such documents shall serve copies of the documentation on all other parties of record and shall file a certificate of service with the commission.
  7. The commission, for good cause shown, may, except in the case of major changes, allow changes in rates to take effect at the end of thirty (30) days from the date of the filing and the notice of intent, or on the effective date set out in the notice, without requiring any further proceedings, under such conditions as it may prescribe. All such changes shall be immediately indicated by such public utility upon its schedules. “Major changes” means (a) an increase in rates which would increase the annual revenues of such public utility more than the greater of One Hundred Thousand Dollars ($100,000.00) or two percent (2%), but shall not include changes in rates allowed to go into effect by the commission or made by the public utility pursuant to an order of the commission after hearings held upon notice to the public, or (b) a change in the rate design which has a significant impact on a class or classes of ratepayers.
  8. For all major changes in rates and schedules as defined in subsection (8) of this section, a public utility as defined in Section 77-3-3(d)(iv) shall provide, not later than twenty (20) days after filing the notice of intent to change rates, notice of such proposed change within each affected customer’s bill or invoice and in a newspaper having general circulation in the area where service is being provided by the public utility. The notice shall state the date on which the notice of intent was filed with the commission and shall include a financial impact statement showing the average amount of increase to customers by class and usage. The filing public utility shall file a copy of the notice, along with a certificate with the executive secretary of the commission, verifying that notice to each of the utility’s affected customers was provided in a timely manner.

HISTORY: Codes, 1942, § 7716-10; Laws, 1956, ch. 372, § 10; Laws, 1983, ch. 467, § 15; Laws, 1985, ch. 302, § 1; Laws, 1988, ch. 310, § 2; Laws, 1990, ch. 530, § 39; Laws, 1992, ch. 417, § 4; Laws, 1997, ch. 540, § 1, eff from and after July 1, 1997.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Hearings on proposed rate changes, see §77-3-39.

Provisions of subsection (7)(b) of this section are not applicable to any proceeding for the change in rates by the commission in connection with a new electric public utility base load generating facility, see §77-3-105.

True-up report requesting true-up adjustment of rate reduction bond charge under §§77-3-111 through77-3-127 does not constitute change in rates and is not subject to requirements of Section77-3-37 or77-3-39, see §77-3-119.

JUDICIAL DECISIONS

1. In general.

Public Service Commission improperly sealed information to which the public was entitled because it erred in determining that rate-impact information was confidential and concealed from the ratepayers the amount of the projected increases; the Commission’s decision to govern in a cloak of secrecy and grant confidentiality to rate-impact information was arbitrary and capricious. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Utility customers who never sought intervention in a rate increase proceeding never became parties and, therefore, did not have standing to appeal from the final order of the Public Service Commission. North Miss. Util. Co. v. Wentworth, 604 So. 2d 218 (Miss. 1992).

The amendments to §77-3-37(6) and (8), effective July 1, 1990, were sufficient to remove any objections pertaining to the Mississippi Public Service Commission’s authority to issue a rule allowing a deficiency in designation to be noted by the staff or any party within 30 days, and therefore the rule was valid even though it conflicted with both subsections of the statute as they existed prior to Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

A natural gas utility seeking a rate increase, which included its investment in an out-of-state savings and loan association as part of its capital structure, was not required to include its tax savings, generated by the savings and loan’s losses, in calculating its revenue deficiency in that the utility’s ratepayers were not sharing in the losses that created tax savings. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 387, 1989 Miss. LEXIS 10 (Miss. 1989).

Under Mississippi law, a fair rate of return for a public utility is one that, under prudent and economical management, is just and reasonable to both the public and the utility. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

States may not regulate in areas in which the FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates or to insure that agreements affecting wholesale rates are reasonable, Congress having drawn a bright line between state and federal authority in the setting of wholesale rates and in the regulation of agreements that affect wholesale rates. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

Under the Federal Power Act (16 USCS §§ 791a et seq.) and the United States Constitution’s supremacy clause (Art VI, cl 2), where the Federal Energy Regulatory Commission (FERC) has allocated a specified percentage of the capacity costs of a powerplant that serves the needs of a utility holding company’s entire system to one of the holding company’s operating subsidiaries, the state public utility commission having jurisdiction over the operating subsidiary’s retail electric rates must treat the operating subsidiary’s FERC-mandated payments for the powerplant’s costs as reasonably incurred operating expenses for the purpose of setting the subsidiary’s retail rates; accordingly, state commission proceedings-(1) to determine whether some or all of the costs were not prudently incurred, including evaluation of either the holding company’s decision to invest in the power plant or the operating subsidiary’s decision to be a party to agreements to construct and operate the plant, or (2) to challenge the reasonableness of the FERC’s cost allocation-are pre-empted by federal law, since (1) the FERC has exclusive authority to determine the reasonableness of wholesale rates, (2) the FERC’s exclusive jurisdiction applies not only to rates, but also to power allocations that affect wholesale rates, and (3) states may not bar regulated utilities from passing through to retain consumers FERC-mandated wholesale rates. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

Intervention by resident security holders was improper where their interest was adequately represented by utility company which was party to action, security holders interest being preservation of their stock value through award of rate increase, which was co-existent with utility company’s desire to enhance its financial position by obtaining rate increase. State ex rel. Pittman v. Mississippi Public Service Com., 506 So. 2d 978, 1987 Miss. LEXIS 2367 (Miss. 1987), rev'd, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

A county board of supervisors in contracting with South Central Bell for telephone service for the county courthouse was not required to resort to public bidding where South Central Bell, as a public utility, was subject to state regulation and was only permitted to charge rates that had been fixed and determined according to the tariffs which it has been required to file with the Mississippi Public Service Commission; however, had the board chosen to purchase or lease equipment from an independent, unregulated equipment supplier, the contract would then have been required to be let on competitive bids because the protection afforded to the public by regulation of South Central Bell would then have been absent. Telcom Systems, Inc. v. Lauderdale County Bd. of Supervisors, 405 So. 2d 119, 1981 Miss. LEXIS 2224 (Miss. 1981).

RESEARCH REFERENCES

ALR.

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.

Am. Jur.

20A Am. Jur. Pl & Pr Forms (Rev) Public Utilities, Form 31C (petition or application by water company for approval of rate schedule and for change in rate of computing annual accrual to depreciation reserve).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 36 (notice from public utility to commission as to proposed rate increase).

CJS.

73B C.J.S., Public Utilities §§ 44-103, 265, 269-273, 274.

Law Reviews.

1989 Mississippi Supreme Court Review: Mississippi Public Service Commission. 59 Miss. L. J. 792.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-39. Hearing on rate change; suspension of proposed rates.

  1. Whenever there is filed with the commission by any public utility any notice of intent to change rates pursuant to the provisions of Section 77-3-37, the commission, if it so orders within thirty (30) days after the date such notice of intent is filed, shall hold a hearing to determine the reasonableness and lawfulness of such rate change. The commission shall hold such hearing in every case in which the change in rates constitutes a major change in rates, as defined in Section 77-3-37(8). An abbreviated proceeding may satisfy this requirement if the commission’s order is supported by the data, documentation and exhibits on file in the proceeding.
  2. Pending such hearing and the decision thereon, the commission may, at any time before they become effective, suspend the operation of such rate or rates, but not for a period longer than one hundred twenty (120) days beyond the date of the filing of the notice of intent, except as provided in subsections (15) and (16) of this section.
  3. Prior to the hearing specifically provided for herein, the commission shall direct all parties of record to appear before a hearing examiner or member of the commission staff designated by it, for a prehearing conference.
  4. Such prehearing conference shall be held at least twenty (20) days before the date such rate case is set for hearing. The commission shall establish a procedure for conducting such prehearing conference, which procedure shall include: (a) setting forth issues upon which no evidence shall be taken, except upon offer of proof; (b) designation of specific issues upon which evidence will be taken; and (c) specific areas of agreement to be placed on the record, together with the original position of the utility, the public utilities staff and the interested parties of record.
  5. At such prehearing conference the commission, or its designee, and the parties shall consider: (a) the simplification of the issues; (b) the necessity or desirability of providing additional information to the commission; (c) the possibility of obtaining admissions or stipulations that will avoid unnecessary proof; and (d) such other matters as may aid in the disposition of the case.
  6. The commission may accept and adopt as its own, the agreements between any or all interested parties of record, or any portion thereof, resulting from the prehearing conference and allow such changes in rates, without requiring any further proceedings, to become effective immediately.
  7. The commission may enter its order reciting the action taken at the prehearing conference, the agreements made by the parties as to any matters considered and the limitation of the issues for hearing to those not disposed of by admissions or stipulations of counsel. If practicable, such order shall specify the facts that appear without substantial controversy, including the extent to which the rate change is not in controversy, and shall also direct such further proceedings in the case as are just.
  8. After the prehearing conference and no later than ten (10) days prior to the date set by the commission for a hearing:
    1. The public utilities staff shall submit to the commission all final exhibits, prepared testimony and evidence, and shall serve copies on all interested parties of record, which documents shall reflect the agreements made at the prehearing conference;
    2. The utility shall provide an exhibit indicating which portion, if any, of the public utilities staff’s presentation and that of other parties it is prepared to accept and be free of future litigation, showing thereon the effect of such acceptance on the applicant’s request for such changes, and shall serve copies on all parties of record;
    3. Parties other than the public utilities staff and the utility shall submit their amended exhibits, prepared direct testimony and evidence, reflecting the agreements made at the prehearing conference, and shall serve copies on all parties of record.
  9. If, after such hearing or abbreviated proceeding, the commission shall find any such rate or rates to be unjust, unreasonable or unreasonably discriminatory, or in anywise in violation of the law, the same shall be set aside, and the commission shall determine and fix by order such rate or rates as will yield a fair rate of return to the public utility for furnishing service to the public and shall make and file its conclusions and findings of facts supporting such order. A copy of such order shall be served upon the utility in the manner provided in this chapter, and the rates fixed by the commission shall be the legal rates until changed as prescribed by this chapter.
  10. Notwithstanding anything to the contrary contained in this chapter, the commission shall hold the hearing, render its decision and enter its order not more than one hundred twenty (120) days after the date of the filing of the said notice of intent. If the commission does not make a final determination concerning any schedule of rates within a period of one hundred twenty 120) days after the date of the filing of the notice of intent, and notwithstanding any order of suspension, except as provided in subsections (15) and (16) of this section, the public utility may put such suspended rate or rates into effect as temporary rates by filing with the commission a bond in a reasonable amount approved by the commission, with sureties approved by the commission, conditioned upon the refund, in a manner and to the parties to be prescribed by order of the commission, of the amount of the excess, with lawful interest thereon, if the rate or rates so put into effect are finally determined to be excessive. There may be substituted for such bond other arrangements satisfactory to the commission for the protection of the parties interested. During any such period when suspended rates are in effect under bond or other arrangement the commission may, in its discretion, require that the public utility involved shall keep an accurate account of payments made under the rate or rates which the public utility has put into operation in excess of the rate or rates in effect immediately prior thereto.
  11. In addition to the other remedies provided by law, should there be an appeal of the commission’s final order, the commission shall allow the utility to place such portion of the schedule of rates that is approved by the commission in such final order into effect under refunding bond or other arrangements satisfactory to the commission for the protection of parties interested.
  12. Should the final judicial determination of an appeal of a commission’s final order rendered pursuant to subsection (9) hereof result in a schedule of rates less than what the commission allowed, the commission shall by order require the refund to customers of any amounts collected by a utility under bond, or other arrangements, during the appellate process which the courts found to be in excess of the amounts that should have been allowed by the commission in its final order. Such refunds shall be made in full, including interest at the lawful rate and shall be made within ninety (90) days after such final judicial determination. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility.
  13. Any bond, or other arrangements, approved by the commission pursuant to subsection (11) of this section shall be in such amount and with sufficient sureties to insure the prompt payment of any refunds if the rates so put into effect are finally determined by the commission or the courts to be excessive.
  14. For purposes of subsections (9), (11) and (12) of this section, the term “final order” means an order of the commission promulgated pursuant to subsection (9) of this section or, in the event of a rehearing conducted pursuant to Section 77-3-65, means an order of the commission promulgated subsequent to such rehearing.
  15. No public utility may have more than one (1) major change in rates in effect under refunding bond at the same time. When a case is pending before the commission or before any court which involves a major change in rates which are in effect under refunding bond, and when the commission shall find that the pending case involves an issue or issues necessary to be resolved before the commission can effectively proceed with the hearing, decision or order, the 120-day period provided for in subsections (2) and (10) of this section may be enlarged by the commission, in order to postpone the hearing on the notice of intent, decision or final order in any subsequent rate case filed by the same utility, until a final order has been rendered with respect to the prior pending change in rates.
  16. When a notice of intent to change rates is filed with the commission, said notice shall be assigned a docket number and the commission shall examine the filing to determine if it contains the standard requirement list of documentation set out in Section 77-3-37(2) and (4), if applicable, and in any rules and regulations adopted by the commission under Section 77-3-37(2). Within five (5) days from the date said notice is filed, the commission shall notify the filing utility in writing of its failure to include with its notice any items included in such standard requirement list of documentation. Such notification shall specify the item or items not filed with said notice. The filing utility shall have ten (10) days from the date it receives said notification to file the omitted item or items with the commission. Provided, however, upon request by the filing utility made within said ten-day period, the commission shall grant, by order, such additional time as the filing utility may request, not to exceed thirty (30) additional days, within which to file the omitted item or items. If the filing utility fails to file the omitted item or items within said ten (10) days or within such extended period of time as the commission by order shall allow, the commission may refuse to consider any evidence in support of said item or items in making the commission’s final determination concerning the schedule of rates filed with the notice. Notwithstanding the 120-day time period imposed on the commission to render its decision and enter its order under subsections (2) and (10) of this section and the 80-day time period imposed on the public utilities staff, intervenors or protestants for the filing of all direct testimony, exhibits and other information under Section 77-3-37(7)(b), if the filing utility is granted additional time within which to file the omitted item or items, said 120-day and the 80-day time periods shall be extended by the number of days between the date of the commission’s order granting the extension and the date such omitted items are filed with the commission, but such extension of said 120-day and 80-day time periods shall not exceed thirty (30) days.

HISTORY: Codes, 1942, § 7716-10; Laws, 1956, ch. 372, § 10; Laws, 1983, ch. 467, § 16; Laws, 1985, ch. 302, § 2; Laws, 1988, ch. 310, § 3; Laws, 1992, ch. 417, § 5, eff from and after passage (approved April 29, 1992).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in subsection (4). The word “and” was inserted before “(c).” The Joint Committee ratified the correction at its July 22, 2010, meeting.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Refunds to state agencies for excess public utility charges, see §7-9-22.

Computation of interest to be paid by public utilities on refunds of excess rates, see §75-17-35.

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Determination of whether a hearing is required pursuant to this section when a formula type rate of return evaluation rate with periodic revenue adjustments is adopted by the commission, see §77-3-2.

Duty of commission, after hearing, to fix just and reasonable rates, see §77-3-41.

Interest on refunds of fuel adjustment costs or charges found to be unjust or unreasonable, see §77-3-42.

Order resulting from proceeding under this section not subject to stay as matter of right, see §77-3-65.

Interest on damages or refunds ordered as result of rehearing, see §77-3-65.

Interest on refunds of moneys collected under bond pending appeal to chancery court at interim rates subsequently determined to be excessive, see §77-3-69.

Security and bond required on appeal to supreme court, see §77-3-71.

Interest on refunds of moneys collected pending direct appeal to supreme court at interim rates subsequently determined by court to be excessive, see §77-3-72.

Refunding bond required on direct appeal to supreme court, see §77-3-72.

Provisions of subsections (10) and (15) of this section are not applicable to any proceeding for the change in rates by the commission in connection with a new electric public utitility base load generating facility, see §77-3-105.

True-up report requesting true-up adjustment of rate reduction bond charge under §§77-3-111 through77-3-127 does not constitute change in rates and is not subject to requirements of Section77-3-37 or77-3-39, see §77-3-119.

JUDICIAL DECISIONS

1. In general.

2. Validity and constitutionality.

3. Preclusion of state prudency review by FERC.

4. Bonds.

5. Extension of time.

1. In general.

Utility customers who never sought intervention in a rate increase proceeding never became parties and, therefore, did not have standing to appeal from the final order of the Public Service Commission. North Miss. Util. Co. v. Wentworth, 604 So. 2d 218 (Miss. 1992).

The requirements of both §77-3-39 and §77-3-47 must be satisfied whenever there is a request for a rate change, regardless of who initiates it. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 387, 1989 Miss. LEXIS 10 (Miss. 1989).

The Public Service Commission does not have the authority to grant a rate increase for power never delivered; thus, a utility company was not allowed a rate increase to recover revenue lost during a period of storm damage when it was unable to provide service to its customers. State ex rel. Pittman v. Mississippi Public Service Com., 520 So. 2d 1355, 1987 Miss. LEXIS 2940 (Miss. 1987).

Commission is authorized to establish just and reasonable rates which lead to fair rate of return for utility, fair rate of return being one which, under prudent and economical management, is just and reasonable to both public and utility. State ex rel. Pittman v. Mississippi Public Service Com., 506 So. 2d 978, 1987 Miss. LEXIS 2367 (Miss. 1987), rev'd, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

So long as Public Service Commission examines and considers evidence and testimony of each expert witness who appears in rate change proceeding and does not ignore salient and substantial factors offered into evidence, Commission has prerogative on disputed issue to adopt whichever expert’s view it chooses to give credence to; in such case, court cannot disturb Commission’s ruling. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

Under §77-3-39, the Mississippi Public Service Commission abused its discretion in adopting a formula for the determination of the rate base of an electric utility which was unsupported by substantial evidence that the formula was reasonable and best suited for that determination, where the formula adopted a projected test year for rate-making purposes, the formula was more speculative than others, its results were substantially eroded by comparison with the results of the first three months of actual use, and under the circumstances, its adoption was arbitrary. State ex rel. Allain v. Mississippi Public Service Com., 435 So. 2d 608, 1983 Miss. LEXIS 2502 (Miss. 1983).

Mississippi Public Service Commission’s order reducing a power company’s proposed inclusion of $19,000,000 plus $1,138,500 in the overall rate base attributable to contract adjustments between the electric company and another utility with respect to acquisition of one-half interest by each company in a steam generation plant was supported by the evidence; however, it was clear error for the Commission to base its adjustment of the utility company’s maintenance expense projection on a methodology which used trends established in prior years, rather than actual figures for the most recent year. Mississippi Public Service Com. v. Mississippi Power Co., 429 So. 2d 883, 1983 Miss. LEXIS 2524 (Miss.), cert. denied, 464 U.S. 819, 104 S. Ct. 81, 78 L. Ed. 2d 91, 1983 U.S. LEXIS 1096 (U.S. 1983).

On appeal by a public telephone company from an order of the Public Service Commission denying its proposed rate increase and allowing only a 10% overall increase, the chancellor properly exercised his discretion in finding, pursuant to §77-3-67(4), that the denial of the higher increase sought by the telephone company was not supported by substantial evidence and was against the manifest weight of undisputed evidence, where the commission failed to fix a rate base as required by §77-3-43, failed to fix a rate of return related to a legally formulated rate base as required by §§77-3-33(1) and77-3-39, and arbitrarily fixed a 10% increase in rates when it appeared certain that compliance with that increase would result in a substantial loss; however, the chancellor erred in fixing a rate base and a rate of return, even though he arrived at amounts warranted by the proof, as §77-3-67(4) provides instead for a remand of the cause to the commission. Mississippi Public Service Com. v. Hughes Tel. Co., 376 So. 2d 1074, 1979 Miss. LEXIS 2512 (Miss. 1979).

Where the only major conflict in evidence was difference or opinion of two rate experts, and where Commission did not follow either rate expert and did not make a finding of fact to support its ultimate conclusion, order of Commission disapproving proposed increases in rates was not supported by substantial evidence and was against manifest weight of undisputed evidence, requiring vacation of Commission’s order. Mississippi Power Co. v. Mississippi Public Service Com., 291 So. 2d 541, 1974 Miss. LEXIS 1727 (Miss. 1974), limited, 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

An allowance for extraordinary obsolescence or extensive supersessions of property or equipment is improper. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

Neither losses sustained nor profits gained are to be given consideration in determining whether a rate increase should be granted. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

2. Validity and constitutionality.

In a consumer’s action against a power company and telephone company challenging the utilities’ statutory authority to raise rates under bond prior to final determination of the authorized rate, the Supreme Court would hold that §77-3-39 is constitutional, that the consumer had no specific vested property right in a fair and reasonable utility rate, that there was no unlawful delegation of legislative power to the utilities, and that the consumer was not denied due process of law. Mississippi Power Co. v. Goudy, 459 So. 2d 257, 1984 Miss. LEXIS 1960 (Miss. 1984).

3. Preclusion of state prudency review by FERC.

Under Federal Power Act (16 USCS §§ 791a et seq.) and the United States Constitution’s supremacy clause, where Federal Energy Regulatory Commission (FERC) has allocated a specified percentage of the capacity costs of a power plant that serves the needs of a utility company’s entire system to one of the holding company’s operating subsidiaries, the state public utility commission having jurisdiction over the operating subsidiary’s retail electric rates must treat the operating subsidiary’s FERC-mandated payments for the power plant’s costs as reasonably incurred operating expenses for the purpose of setting the subsidiary’s retail rates; accordingly, state commission proceedings (1) to determine whether some or all of the costs were not prudently incurred, including evaluation of either the holding company’s decision to invest in the power plant or the operating subsidiary’s decision to be a party to agreements to construct and operate the plant, or (2) to challenge the reasonableness of FERC’s cost allocation, are pre-empted by federal law, since (1) FERC has exclusive authority to determine the reasonableness of wholesale rates, (2) FERC’s exclusive jurisdiction applies not only to rates but also to power allocations that affect wholesale rates, and (3) states may not bar regulated utilities from passing through to retail consumers FERC-mandated wholesale rates. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

4. Bonds.

A refunding bond by a utility seeking to put into effect an increase in rates pending a determination of their validity, should continue in effect pending a final determination. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

5. Extension of time.

The Mississippi Public Service Commission exceeded its statutory authority in adopting a rule providing that the “time periods imposed upon the Commission by Sections [sic] 77-3-39(6) of the Mississippi Code shall not begin to run until such time as an amended filing is made in substantial compliance with these regulations” because the effect of the rule was to extend the statutorily imposed time period within which the Commission is required to hold a hearing. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

Commission may not under §77-3-39 extend time for hearing beyond 6 months prescribed by statute, otherwise it would lose jurisdiction to suspend rates and complete hearing; however, this would not affect the power of Commission to review rates because under §77-3-41, the Commission may, on reasonable notice, determine just and reasonable rates. Mississippi Power Co. v. Mississippi Public Service Com., 291 So. 2d 541, 1974 Miss. LEXIS 1727 (Miss. 1974), limited, 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

RESEARCH REFERENCES

ALR.

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 revenue. 41 A.L.R.5th 783.

Am. Jur.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 32 (petition or application for rehearing on denial of application for rate increase).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 35 (complaint by individual consumer against electric company opposing proposed rate increase).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 131 (complaint, petition, or declaration against electric company for refund of overcharges).

Law Reviews.

1989 Mississippi Supreme Court Review: Mississippi Public Service Commission. 59 Miss. L. J. 792.

§ 77-3-40. Hearing examiners; powers and duties; reports, recommended decisions and orders of examiners; procedures.

  1. The commission is authorized and empowered to employ not more than three (3) hearing examiners to whom the commission may refer such matters as the commission may deem advisable in order to expedite the work of the commission.
  2. The commission may refer any matter requiring a hearing to a hearing examiner for hearing, report and recommendation of an appropriate order or decision thereon by the commission. Subject to the limitations prescribed in this chapter, a hearing examiner to whom a hearing has been referred by order of the commission shall have all the rights, duties, powers and jurisdiction conferred by this chapter upon the commission. The commission may direct any hearing by the hearing examiner to be held in such place or places within the state as may be determined to be in the public interest and as will best serve the convenience of interested parties. Before any hearing examiner enters upon the performance of duties as an examiner, he shall first take, subscribe to and file with the commission an oath similar to the oath required of members of the commission.
  3. In all cases in which a pending proceeding shall be assigned to a hearing examiner, such examiner shall hear and determine the proceedings and submit his recommended order, but, in the event of a petition to the commission to review such recommended order, the hearing examiner shall take no part in such review.
  4. Any report, order or decision recommended by a hearing examiner with respect to any matter referred for hearing shall be in writing and shall set forth separately findings of fact and conclusions of law and shall be filed with the commission. A copy of such recommended order, report and findings shall be served upon the parties who have appeared in the proceeding.
    1. Prior to any recommended decision or order of an examiner, the parties shall be afforded an opportunity to submit, within the time prescribed by order entered in the cause, unless further extended by order of the commission, for the consideration of the examiner, as the case may be, proposed findings of fact and conclusions of law and briefs or, in its discretion, oral arguments in lieu thereof.
    2. Within the time prescribed by the examiner, the parties shall be afforded an opportunity to file exceptions to the recommended decision or order, provided the time so fixed shall be not less than fifteen (15) days from the date of such recommended decision or order. If exceptions are filed, a complete record of the proceedings before the hearing examiner shall be prepared and shall include the ruling upon each requested finding and conclusion or exception.
    3. When no exceptions are filed within the time specified to a recommended decision or order, such recommended decision or order shall become the order of the commission and shall immediately become effective unless the order is stayed or postponed by the commission; provided, the commission may, on its own motion, review any such matter and take action thereon as if exceptions thereto had been filed.
    4. When exceptions are filed, as herein provided, it shall be the duty of the commission to consider the same and, if sufficient reason appears therefor, to grant such review or make such order or hold or authorize such further hearing or proceeding as may be necessary or proper to carry out the purposes of this chapter. The commission, after review, upon the whole record, or as supplemented by a further hearing, shall decide the matter in controversy and make appropriate order or decision thereon. Briefs and oral argument before the commission shall be permitted if requested by any party of record.
  5. The commission may also refer such matters as the commission may deem advisable in order to expedite the work of the commission to any member of the commission for hearing, report and recommendation in accordance with the procedures provided in this section, except that the commission member hearing the matter may participate in any review of his recommended order by the commission.

HISTORY: Laws, 1983, ch. 467, § 17; Laws, 1991, ch. 370, § 1; Laws, 1992, ch. 417, § 6, eff from and after passage (approved April 29, 1992).

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

JUDICIAL DECISIONS

1. In general.

Public Service Commission may cut off Attorney General’s cross-examination of expert witness concerning expert’s professional qualifications as compared to qualifications of another expert where Commission is fully familiar with expert’s professional qualifications and nothing would be served by repeating before Commission at hearing what is already matter of public record. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

§ 77-3-41. Rates fixed by commission.

Whenever the commission, after hearing had on reasonable notice, finds that the existing rates in effect and collected by any public utility are unjust, unreasonable, materially excessive or insufficient or unreasonably discriminatory, or in anywise in violation of any provision of law, the commission shall determine, and fix by order, the just and reasonable rates which will yield a fair rate of return to the utility for furnishing service, which rates will thereafter be observed and in force. Said rates shall thereupon become the legal rates to be charged and paid until changed.

The commission shall have power, when deemed by it necessary to prevent injury to the business or interest of the people or any public utility of this state in case of any emergency, to permit any public utility to alter, amend or suspend temporarily any existing rates, schedules and orders relating to or affecting any public utility or part of any public utility in this state except as provided in Section 77-3-42.

HISTORY: Codes, 1942, § 7716-11; Laws, 1956, ch. 372, § 11; Laws, 1978, ch. 507, § 1(1), (2); Laws, 1983, ch. 467, § 18; Laws, 1989, ch. 304, § 2; Laws, 1992, ch. 417, § 7, eff from and after passage (approved April 29, 1992).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Employment and duties of rate expert and his assistant, see §77-1-17.

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

JUDICIAL DECISIONS

1. In general.

2. Power of court.

1. In general.

Under Mississippi law, a fair rate of return for a public utility is one that, under prudent and economical management, is just and reasonable to both the public and the utility. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

States may not regulate in areas in which the FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates or to insure that agreements affecting wholesale rates are reasonable, Congress having drawn a bright line between state and federal authority in the setting of wholesale rates and in the regulation of agreements that affect wholesale rates. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

Under the Federal Power Act (16 USCS §§ 791a et seq.) and the United States Constitution’s supremacy clause (Art VI, cl 2), where the Federal Energy Regulatory Commission (FERC) has allocated a specified percentage of the capacity costs of a powerplant that serves the needs of a utility holding company’s entire system to one of the holding company’s operating subsidiaries, the state public utility commission having jurisdiction over the operating subsidiary’s retail electric rates must treat the operating subsidiary’s FERC-mandated payments for the powerplant’s costs as reasonably incurred operating expenses for the purpose of setting the subsidiary’s retail rates; accordingly, state commission proceedings-(1) to determine whether some or all of the costs were not prudently incurred, including evaluation of either the holding company’s decision to invest in the power plant or the operating subsidiary’s decision to be a party to agreements to construct and operate the plant, or (2) to challenge the reasonableness of the FERC’s cost allocation-are pre-empted by federal law, since (1) the FERC has exclusive authority to determine the reasonableness of wholesale rates, (2) the FERC’s exclusive jurisdiction applies not only to rates, but also to power allocations that affect wholesale rates, and (3) states may not bar regulated utilities from passing through to retail consumers FERC-mandated wholesale rates. Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 108 S. Ct. 2428, 101 L. Ed. 2d 322, 1988 U.S. LEXIS 2874 (U.S. 1988).

The Public Service Commission may permit, as an item of expense chargeable to ratepayers, the establishment of a reserve for storm damage, and may authorize, as a legitimate expense of operation, annual contributions to those reserves; however, as with expenses for storm damage actually incurred, charges for the establishment of a storm reserve are allowable only after a hearing. State ex rel. Pittman v. Mississippi Public Service Com., 520 So. 2d 1355, 1987 Miss. LEXIS 2940 (Miss. 1987).

Since the rate making authority is legislative in character, it rests within the power of the commission; the authority of the court to enjoin or restrain imposition of confiscatory rates does not carry with it the power to establish the rate. Mississippi Public Service Com. v. Mississippi Power Co., 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

Commission may not under §77-3-39 extend time for hearing beyond 6 months prescribed by statute, otherwise it would lose jurisdiction to suspend rates and complete hearing; however, this would not affect power of Commission to review rates because under §77-3-41, Commission may, on reasonable notice, determine just and reasonable rates. Mississippi Power Co. v. Mississippi Public Service Com., 291 So. 2d 541, 1974 Miss. LEXIS 1727 (Miss. 1974), limited, 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

Where a franchise granted by a city to a gas company provided that the rates then fixed should be effective as long as they remained fair or were changed or altered as provided by law, and subsequently the legislature withdrew from municipalities the right to fix rates, remedy of city in opposing gas company’s rate change was before the public service commission. United Gas Corp. v. Philadelphia, 238 Miss. 409, 118 So. 2d 618, 1960 Miss. LEXIS 420 (Miss. 1960).

In rate-making proceedings, rates for the future are usually based on actual operating experience for a representative period, with adjustment for changes that appear definite and certain. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

The reasonableness or unreasonableness of the rates charged, or to be charged, by a public utility for its service or product is not to be determined by any definite rule or legal formula, and is not measurable with any great degree of exactness, but is a question of fact calling for the exercise of sound discretion, good sense, and a fair, enlightened, and independent judgment, and in determining whether a rate is reasonable, each case must rest on its special facts. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

A rate of return in the range of 4.96 per cent to 5.08 per cent on the reasonable value of a telephone company’s interstate property, while low as compared with the rates allowed in other jurisdictions, is not confiscatory, and it cannot be said that such rates are unjust or unreasonable, or that the rate of return itself is not a fair rate of return. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

Since the function of rate making is purely legislative in character, a court is without power to fix the rates to be charged by public utilities, but may restrain the imposition of confiscatory rates, or, under the Public Utility Act, determine whether rates as fixed are supported by substantial evidence, or within the other statutory restrictions set forth in Code 1942, § Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

A utility is entitled to rates which will yield a fair return upon the reasonable value of property used or usable in furnishing services. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

A rate established by the commission is not necessarily unreasonable because of uncertainty as to whether it will yield a fair return. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

2. Power of court.

The language used by the chancellor, which remanded the matter to the Public Service Commission and directed the allowance of specified rate increases, was an improper attempt to set a rate increase in direct contravention of the statute. Mississippi PSC v. Dixie Land & Water Co., 707 So. 2d 1086, 1998 Miss. LEXIS 17 (Miss. 1998).

RESEARCH REFERENCES

ALR.

Public utilities: validity of preferential 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.

CJS.

73B C.J.S., Public Utilities §§ 44-103, 265, 269-273, 274.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-42. Rate increase resulting from fuel adjustment clauses or riders; audits of fuel purchases.

    1. No public utility, the rates of which are subject to regulation under the provisions of this chapter, shall increase its rate or rate schedule in addition to its base rate as a result of what is commonly referred to as “fuel adjustment clauses” increase or “fuel adjustment riders” if the application of such clause or rider shall result in ultimate cost recovery exceeding the actual cost of fuel burned or consumed in its generating facilities and the cost of purchased energy.
    2. For the purpose of such fuel adjustment clause or rider, the cost of fuel as used herein shall include only the actual cost of the fuel and its transportation and may include such other cost items which are as of the effective date of this section allowed by the federal energy regulatory commission for inclusion in wholesale fuel adjustment clauses under its jurisdiction. In addition thereto fuel cost may include direct costs associated with burning the fuel at the generating plant such as fuel handling expenses and the cost of fuel sampling and analysis.
    1. The commission is hereby directed to cause a continuous monitoring by the public utilities staff and a complete audit, as necessary but not less than annually, of all fuel purchases for which fuel adjustment clauses or riders have been placed in effect prior to and after the effective date of this section, which shall totally verify fuel costs as might be consumed in generating plants and all purchased energy of such electric utilities in Mississippi with said audit being based upon generally accepted auditing standards which would accurately provide detailed information as to the actual monthly utility fuel costs. Such audit shall be completely independent of any audit performed on behalf of such utility.
    2. The commission is hereby directed to promulgate rules and regulations, not inconsistent with the laws, (i) to define allowable costs for inclusion in fuel adjustments, (ii) to establish guidelines for defining what elements constitute a just and reasonable fuel adjustment clause or rider, (iii) to establish guidelines for defining what elements constitute efficient and economical procurement and use of energy and fuel, and (iv) to establish general guidelines for making the required review of fuel adjustment clauses or riders as required by this section. Such rules and regulations shall be spread upon the minutes of the commission.
    3. Such audits shall include (i) a determination if fuel and associated costs are properly identified and recorded in the appropriate uniform system of accounts, (ii) a determination if purchased energy and associated costs are properly identified, (iii) an assessment of a utility’s practices for economical purchase and use of fuel and electric energy, and (iv) an assessment of the relevant contract terms and conditions and any variations from contract terms.
  1. The audits required by this section shall extend to the fuel acquisition activities of any corporation which is owned in whole or in part by any such public utility under the jurisdiction of the commission or owned in whole or in part by a public utility holding company which is the parent company of any public utility under the jurisdiction of the commission. Public utilities under the jurisdiction of this commission, the rates of which are subject to regulation under the provisions of this chapter, shall not purchase fuel and/or energy from a company or corporation which is owned in whole or in part by that public utility or by the parent company of that public utility unless the selling company or corporation assents to audits as provided for under this section.
  2. Upon receipt of each audit report, the certified public accountant of the public utilities staff shall review the report and furnish the commissioners with a written summary of, and his comments on, the report. The commission shall meet within one (1) week after receipt of the accountant’s summary, and shall spread upon the minutes of the commission that it has reviewed said summary and further shall describe any action which it takes regarding the audit report or the fact that no action was required. Any costs included in a fuel adjustment clause or rider by a public utility under the jurisdiction of the commission found in violation of this section shall, by order of the commission, be refunded to the appropriate person or persons. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility.
  3. Periodically, and not less frequently than annually, the commission shall review the audit reports, the reports of the certified public accountant of the public utilities staff, any reports of the public utilities staff relating to its monitoring of fuel purchases, and all other relevant information relating to fuel purchases, fuel adjustment clauses or riders, and purchased energy for the purpose of determining (a) whether or not the utility is properly and correctly employing the use of the fuel adjustment clause or rider applicable to its operations and billing procedures, (b) whether or not the utility has engaged in practices in the acquisition of fuel or purchased energy which are efficient and economical, and (c) whether or not there is reason to question the practices, contracts, operations or procedures of the utility in the purchase or acquisition of fuel or purchased energy relative to efficiency, economy and the public interest.

    If the commission, after following the procedures described above, has reasonable cause to believe that inefficient or uneconomical procurement or use of fuel or purchased energy has resulted in unreasonable or unjust charges or costs to the consumers, then the commission shall initiate a procedure for hearing as provided for in Section 77-3-47 for the purpose of determining whether or not any of the costs or charges included in the fuel adjustment charges to the consumers were unreasonable or unjust. If the commission upon hearing shall find that any charges for the purchase or procurement of fuel or purchased energy were unreasonable or unjust, then the commission shall order that such costs or charges be refunded to the appropriate person or persons together with interest at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility.

    1. The commission shall maintain at all times complete and current data relating to sales and purchases of electric capacity of all utilities, including copies of contracts and agreements for the purchase of electric capacity, amendments to such contracts, records of purchases and sales of electric capacity, and all other relevant information and data deemed appropriate by the commission for carrying out the provisions of this section.
    2. The commission is hereby directed to review, not less frequently than annually, the information and data described above. If, from said review the commission has reasonable cause to believe that inefficient or uneconomical sales or purchases of electric capacity by a utility, the rates of which are subject to regulation by the commission, have resulted in unreasonable or unjust charges or costs to the consumers, then the commission shall initiate a procedure for hearing as provided for in Section 77-3-47 for the purpose of determining whether or not any of the costs or charges for sales or purchases of electric capacity included in the charges to consumers were unreasonable or unjust. If the commission, upon hearing, shall find that any such charges for the sale or purchase of electric capacity were unreasonable or unjust, then the commission shall order that such costs or charges be refunded to the appropriate person or persons, together with interest thereon at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility.
  4. The commission shall provide a full and complete report of said audits to the legislature on or before January 15 of each year. The report shall include certification by the commission that the information is true and correct as well as other clarifications of the audit information and any recommendations for correcting imperfections in statutes relative to existing fuel or purchased gas adjustments.
  5. Nothing in this section shall prohibit the commission from entering an order in a declared emergency allowing public utilities under such emergency circumstances to adjust their rates for a period not to exceed sixty (60) days upon declaration of said emergency. There shall be a full hearing and a complete and total accounting as to total costs of said commission order to public utilities customers, with detailed accounting of such emergency fuel adjustment clause order being made available to the public.
  6. This section shall not apply to a municipality, including a joint agency organized pursuant to Sections 77-5-701 et seq., as amended.

HISTORY: Laws, 1978, ch. 507, § 1(3); Laws, 1983, ch. 467, § 19, eff from and after passage (approved April 6, 1983).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Provisions of this section constituting exception to power of commission to permit temporary changes or suspensions of rates, schedules or orders, see §77-3-41.

JUDICIAL DECISIONS

1. In general.

The Public Service Commission does not have the authority to grant a rate increase for power never delivered; thus, a utility company was not allowed a rate increase to recover revenue lost during a period of storm damage when it was unable to provide service to its customers. State ex rel. Pittman v. Mississippi Public Service Com., 520 So. 2d 1355, 1987 Miss. LEXIS 2940 (Miss. 1987).

RESEARCH REFERENCES

ALR.

Validity of “fuel adjustment” or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers. 83 A.L.R.3d 933.

Am. Jur.

15 Am. Jur. Legal Forms 2d, Public Utilities § 215:10 (report on changes in rate schedule).

15 Am. Jur. Legal Forms 2d, Public Utilities § 215:18 (rates under special conditions-authorization for riders).

CJS.

73B C.J.S., Public Utilities §§ 44-103, 265, 269-273, 274.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-43. Determination of rate base.

  1. In regulating the rates of any public utility subject to the provisions of this chapter, the commission shall, on hearing after reasonable notice, ascertain and fix the rate base of the property of the public utility in such manner as to be fair both to the public utility and to the consumer when the same is relevant or material to the exercise of the jurisdiction of the commission. The commission shall make readjustments from time to time, and ascertain the cost of all new construction, extensions and additions to the property of every public utility. In arriving at such rate base, the commission shall give due consideration to: (a) the reasonable original costs of the property used and useful, or to be used and useful within a reasonable time after the test period; (b) the portion of the cost which has been consumed by previous use recovered by depreciation expense; (c) the allowance for funds used during construction, not to exceed on borrowed funds the true net interest cost of such funds, computed according to the actuarial method, and, on the equity component thereof, a rate of return granted on common equity in the last rate proceedings before the commission, or if such rate has not been established within the preceding three (3) years, then the average rate of return actually earned on equity during the preceding three (3) years; (d) any other elements deemed by the commission to be material in determining the rate base for rate-making purposes.
  2. Valuations of property of such a public utility for rate-making purposes shall not include property purchased, labor supplied or services rendered by any firm or corporation owned or controlled in whole or in part, directly or indirectly, by such public utility, or which owns or controls in whole or in part, directly or indirectly, such public utility, unless such firm or corporation permits the commission to have access to such of the books and records of such firm or corporation as may be necessary in the opinion of the commission to enable the commission to determine whether such labor, materials, property or services rendered were supplied at reasonable prices. The rate base shall not include property donated to such utility without any consideration nor shall operating expenses include depreciation of such donated property.
  3. Whenever the commission is required in administering this chapter to find the value of gas in the field where produced, such value shall be determined as the amount paid therefor by the public utility in the field pursuant to arm’s length contract; and in the absence of such arm’s length contract, the fair market value of such gas as a commodity in the field.
  4. The commission, in its discretion, when requested by petition of a rate-jurisdictional public utility providing water service as defined in Section 77-3-3(d) (iv), may allow to be recovered in rates the reasonable costs of used and useful facilities deemed necessary for fire protection. Such facilities include fire hydrants, transmission and distribution mains, storage facilities, pumping equipment or other facilities associated with the provision of adequate water production, storage and distribution for fire protection.

HISTORY: Codes, 1942, § 7716-12; Laws, 1956, ch. 372, § 12; Laws, 1983; ch. 467, § 20; Laws, 2002, ch. 455, § 1, eff from and after July 1, 2002.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in (2). The words “which owns or controls” were substituted for “which owns or control.” The Joint Committee ratified the correction at its May 16, 2002, meeting.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Amendment Notes —

The 2002 amendment added (4).

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

JUDICIAL DECISIONS

1. In general.

In a condemnation proceeding, the trial court erred by failing to strike the testimony of the city’s expert because his entire appraisal of the value of the private water utility was based on data from Public Service Commission used to determine rates that did not include the value of property contributed by land developers; “contributed property” must be included in the utility plant value for the purpose of condemnation under Miss. Code Ann. §77-3-17, even though such items were not included for purposes of rate-regulation under Miss. Code Ann. §77-3-43(2). Dedeaux Util. Co. v. City of Gulfport, 938 So. 2d 838, 2006 Miss. LEXIS 529 (Miss. 2006).

On appeal by a public telephone company from an order of the Public Service Commission denying its proposed rate increase and allowing only a 10% overall increase, the chancellor properly exercised his discretion in finding, pursuant to §77-3-67(4), that the denial of the higher increase sought by the telephone company was not supported by substantial evidence and was against the manifest weight of undisputed evidence, where the commission failed to fix a rate base as required by §77-3-43, failed to fix a rate of return related to a legally formulated rate base as required by §§77-3-33(1) and77-3-39, and arbitrarily fixed a 10% increase in rates when it appeared certain that compliance with that increase would result in a substantial loss; however, the chancellor erred in fixing a rate base and a rate of return, even though he arrived at amounts warranted by the proof, as §77-3-67(4) provides instead for a remand of the cause to the commission. Mississippi Public Service Com. v. Hughes Tel. Co., 376 So. 2d 1074, 1979 Miss. LEXIS 2512 (Miss. 1979).

RESEARCH REFERENCES

ALR.

Advertising or promotional expenditures of public utility as part of operating expenses for ratemaking purposes. 83 A.L.R.3d 963.

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.

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 98, 102 et seq.

CJS.

73B C.J.S., Public Utilities §§ 83, 104-109, 249, 253, 254, 257.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-44. Rate-regulated electric public utilities authorized to undertake economic development activities.

Any rate-regulated electric or natural gas public utility with certificated service area in Mississippi may undertake economic development activities, whether directly or indirectly, including activities such as providing capital, or investment in or acquisition and development of business or industrial sites and the necessary infrastructure or services needed to attract new or existing businesses or industry, to create or maintain employment opportunities, or otherwise to positively impact or in some manner promote the sale of electric energy or natural gas within its certificated service area. Any facilities developed, constructed or acquired in support of the activities described in this section for which a certificate of public convenience and necessity or other commission approval has been granted after July 1, 2015, as well as any capital investment in natural gas reserves made directly or indirectly by an electric or natural gas public utility to foster long-term stability in the cost of fuel, may be deemed used and useful in the provision of electric or natural gas service regardless of whether or not any end-use customers are taking service from said facilities or investment and otherwise recoverable through the utility’s rates.

HISTORY: Laws, 2015, ch. 360, § 3; Laws, 2017, ch. 322, § 1, eff from and after passage (approved Mar. 10, 2017).

Amendment Notes —

The 2017 amendment, effective March 10, 2017, inserted “or natural gas” everywhere it appears; and substituted “granted after July 1, 2015” for “granted after the effective date of this act” in the last sentence.

§ 77-3-45. Promulgation of rules and regulations.

The commission shall prescribe, issue, amend and rescind such reasonable rules and regulations as may be reasonably necessary or appropriate to carry out the provisions of this chapter. No rule or regulation shall be effective until thirty (30) days after a notice setting forth either the terms or substance thereof or a description of the subjects and issues involved and the time and place of a hearing thereon shall have been published in a newspaper of general circulation in the state. The commission shall file the notice with the Secretary of State pursuant to the Mississippi Administrative Procedures Law and mail a copy of it to all affected public utilities. The commission shall mail a copy of the proposed rule or regulation to any public utility that requests a copy. The hearing may be held at any time twenty (20) days after date of publication of the notice, but the rules or regulations shall not become effective until a hearing thereon. A proceeding to contest any rule or regulation due to noncompliance with the procedural requirements of this section must be commenced within one (1) year from the effective date of the rule or regulation. All rules and regulations of the commission shall be filed with its executive secretary and shall be readily available for public inspection and examination during reasonable business hours. Any interested person shall have the right to petition the commission for issuance, amendment or repeal of a rule or regulation.

The commission shall, in the exercise of its power to promulgate rules and regulations, adopt standard practices and procedures:

To specify what costs may be used for determining a public utility’s rate base, which balance the interests of consumers and investors;

To prescribe the time period for measuring a public utility’s rate base;

To specify allowable operating expenses, provided, however, that the commission shall exclude from a public utility’s allowable operating expenses any interest such utility paid, or credited, to its consumers in connection with refunds in a rate proceeding in which its rates were finally determined to be excessive;

To determine accurately the capital costs of a public utility;

To define specific costs which may be included by a public utility in its monthly fuel adjustment clause retail billings;

To define specific costs which may be included by a public utility distributing gas in its monthly purchased gas adjustments retail billings;

To prescribe minimal uniform standards of service for various classes of public utilities; and

To provide for any other rules and regulations deemed by the commission to be appropriate for carrying out the provisions of this chapter.

HISTORY: Codes, 1942, § 7716-13; Laws, 1956, ch. 372, § 13; Laws, 1983, ch. 467, § 21; Laws, 1993, ch. 420, § 1, eff from and after July 1, 1993.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Mississippi Administrative Procedures Law, see §§25-43-1.101 et seq.

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Duty of public utilities staff to make recommendations concerning standards, regulations, practices, or services, see §77-3-8.

Generation and transmission cooperatives subject only to provisions of §§77-3-11,77-3-13,77-3-14,77-3-23,77-3-25,77-3-27 and77-3-45, see §77-5-256.

JUDICIAL DECISIONS

1. In general.

The Mississippi Public Service Commission exceeded its statutory authority in adopting a rule which provided that the deposition of a witness could be taken upon agreement of the parties or in the discretion of the Commission since §77-3-51 clearly gives the right to take and use a deposition only upon agreement of the parties. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

The adoption of rules providing a procedure not permitted by §77-3-13(3) for the suspension and voiding of a certificate of convenience and necessity exceeded the authority of the Mississippi Public Service Commission, and the rules were therefore invalid. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

The Mississippi Public Service Commission exceeded its authority in adopting a rule requiring a utility to provide written notice to its customers of the utility’s filing for any certificate because §77-3-13(3) provides that the Commission shall give the notice required, and therefore the rule would transfer this duty to the utilities contrary to the provisions of the statute. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

The amendments to §77-3-37(6) and (8), effective July 1, 1990, were sufficient to remove any objections pertaining to the Mississippi Public Service Commission’s authority to issue a rule allowing a deficiency in designation to be noted by the staff or any party within 30 days, and therefore the rule was valid even though it conflicted with both subsections of the statute as they existed prior to Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

The Mississippi Public Service Commission exceeded its statutory authority in adopting a rule providing that the “time periods imposed upon the Commission by Sections [sic] 77-3-39(6) of the Mississippi Code shall not begin to run until such time as an amended filing is made in substantial compliance with these regulations” because the effect of the rule was to extend the statutorily imposed time period within which the Commission is required to hold a hearing. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

Letters from public officials and commercial establishments expressing interest in proposed new service were properly considered by the Mississippi Public Service Commission, and supported the Commission’s order granting a certificate of public convenience and necessity to own and operate a radio transmitted paging service. New South Communications, Inc. v. Answer Iowa, Inc., 490 So. 2d 1225, 1986 Miss. LEXIS 2502 (Miss. 1986).

Administrative bodies are not ordinarily bound by strict rules of evidence. New South Communications, Inc. v. Answer Iowa, Inc., 490 So. 2d 1225, 1986 Miss. LEXIS 2502 (Miss. 1986).

The commission has the power to make rules and regulations. Capital Electric Power Asso. v. Mississippi Power & Light Co., 216 So. 2d 428, 1968 Miss. LEXIS 1229 (Miss. 1968).

Where the order of the public service commission authorizing a public utility to construct on its own rights-of-way an electric line to provide standby auxiliary service to its properly authorized substation which was located in an area certificated to another utility was supported by substantial evidence, it was affirmed. Capital Electric Power Asso. v. Mississippi Power & Light Co., 216 So. 2d 428, 1968 Miss. LEXIS 1229 (Miss. 1968).

§ 77-3-46. Management reviews of public utility companies.

Notwithstanding any other provisions of this chapter, the commission may, in its discretion, initiate a management review of any public utility company, the rates of which are subject to regulation under the provisions of this chapter and which has in excess of twenty-five thousand (25,000) customers, once every five (5) years, and at such other times deemed necessary by the commission as determined by it during a hearing, by a competent, qualified and independent firm, such review to examine thoroughly the efficiency and effectiveness of management decisions among other factors as directed by the commission. Such public utility shall render to the commission for such purpose books, records and other items prescribed by the commission. The cost of such review is to be borne by the particular public utility subject to the review; provided, however, that carriers subject to regulation by and auditing of the interstate commerce commission shall not be required to bear the expense of additional management review required hereunder.

Whenever the commission is of the opinion that it is in the public interest to do so, the commission may in its discretion initiate a management review of any other public utility company, the rates of which are subject to regulation under the provisions of this chapter, in accordance with the procedures set forth above in this section.

The commission shall not contract for such management review with any firm that has within three (3) years prior thereto performed a financial audit on behalf of such public utility nor on behalf of any affiliate, subsidiary, holding or parent company.

HISTORY: Laws, 1983, ch 467, § 22, eff from and after passage (approved April 6, 1983).

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in the first paragraph, by substituting “which has in excess of twenty-five thousand (25,000) customers” for “which has in excess a twenty-five thousand (25,000) customers.” The Joint Committee ratified the correction at its July 22, 2010, meeting.

RESEARCH REFERENCES

ALR.

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.

§ 77-3-47. Hearings by commission.

The commission may, in addition to the hearings specifically provided for by this chapter, conduct such other hearings as may be deemed necessary in the administration of the powers and duties conferred upon it by this title.

The commission shall fix the time and place of hearings and shall serve notice thereof, not less than twenty (20) days before the time set for such hearings, unless the commission shall find that public convenience or necessity requires that such hearings be held at an earlier date. The commission may dismiss any complaint without a hearing if in its opinion a hearing is not necessary in the public interest or for the protection of substantial rights. Notice of all such hearings shall be given the persons interested therein by mailing such notice to each public utility which may be affected by any order resulting therefrom and by publication in a newspaper of general circulation published in Jackson, Mississippi, and, in a proceeding for a facility certificate or an area certificate, by publication in a newspaper of general circulation in the county or counties where the facility or area is located. In addition to any other notice requirements prescribed in this section, notice of a hearing regarding a major change in rates and schedules, as defined in Section 77-3-37(8), by a public utility of the type defined in Section 77-3-3(d)(iv) shall be published in a newspaper having general circulation in an area where service is being provided by the public utility.

At the time fixed for any hearing before the commission, or the time to which the same may have been continued, the complainant and the person complained of shall be entitled in person or by attorney to be heard and to introduce evidence.

HISTORY: Codes, 1942, § 7716-14; Laws, 1956, ch. 372, § 14; Laws, 1978, ch. 448, § 1; Laws, 1983, ch. 467, § 23; Laws, 1990, ch. 530, § 40; Laws, 1992, ch. 417, § 8; Laws, 1997, ch. 540, § 2, eff from and after July 1, 1997.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision, and Publication corrected a typographical error in Section 2 of ch. 540, Laws, 1997. In the last sentence of the second paragraph of this section, the reference to Section 77-3-7(8) was changed to 77-3-37(8). The Joint Committee ratified the correction at the May 8, 1997, meeting of the Committee.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Direction that, for purposes of retroactive validation and administration of any formula type utility rate, the provisions of this section shall be interpreted to prevail in any conflict with any provisions of such rate, see §77-3-2.

Applicability of this section to hearings on rate changes, see §77-3-39.

Duty of commission, after hearing, to fix just and reasonable rates, see §77-3-41.

Hearing to determine reasonableness or justness of costs or charges included in fuel adjustment charges, see §77-3-42.

JUDICIAL DECISIONS

1. In general.

2. Notice.

1. In general.

Mississippi Public Service Commission did not commit reversible error in denying a resident a hearing when it dismissed his complaint challenging the Commission’s decision to grant a Supplemental Certificate of Public Convenience and Necessity (CCN) to a water, sewer, and fire district because the resident’s rights were not infringed by the lack of a hearing, and the public interest would not have been served by granting the resident a hearing, which would have been futile; Miss. Code R. §26-000-001 and Miss. Code Ann. §77-3-47 authorize the Commission to dismiss a complaint without a hearing, and a hearing is not necessary in the public interest or for the protection of substantial rights. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

Utility customers who never sought intervention in a rate increase proceeding never became parties and, therefore, did not have standing to appeal from the final order of the Public Service Commission. North Miss. Util. Co. v. Wentworth, 604 So. 2d 218 (Miss. 1992).

The requirements of both §77-3-39 and §77-3-47 must be satisfied whenever there is a request for a rate change, regardless of who initiates it. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 387, 1989 Miss. LEXIS 10 (Miss. 1989).

Public Service Commission may cut off Attorney General’s cross-examination of expert witness concerning expert’s professional qualifications as compared to qualifications of another expert where Commission is fully familiar with expert’s professional qualifications and nothing would be served by repeating before Commission at hearing what is already matter of public record. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

So long as Public Service Commission examines and considers evidence and testimony of each expert witness who appears in rate change proceeding and does not ignore salient and substantial factors offered into evidence, Commission has prerogative on disputed issue to adopt whichever expert’s view it chooses to give credence to; in such case, court cannot disturb Commission’s ruling. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

Failure of landowners to comply with 30 day requirement for appeal would be excused, since the owners did not receive the notice required by §77-3-47, and since, to require owners to appeal an order affecting them and about which they had absolutely no knowledge or notice, would have been contrary to the due process requirements of either the state or federal constitutions. Mississippi Power & Light Co. v. Conerly, 460 So. 2d 107, 1984 Miss. LEXIS 2080 (Miss. 1984).

2. Notice.

Supreme court had jurisdiction over the orders of the Mississippi Public Service Commission denying a resident’s motion to amend his complaint challenging the grant of a Supplemental Certificate of Public Convenience and Necessity (CCN) to a water, sewer and fire district and dismissing the complaint but not over the grant of the supplemental CCN because the resident attempted to appeal the supplemental CCN decision by way of appealing the Commission’s orders, and the appeal was untimely since it was filed more than four years after the order granting the supplemental CCN; the Commission filed a timely notice in a newspaper that a decentralized system would be implemented, and the resident was notified of the planned implementation when the district adopted an ordinance, published notice concerning the adoption of the ordinance, and then passed the ordinance after a public hearing at which no one expressed opposition. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 178.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 6, 7 (notice of hearing).

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Form 37 (order directing commission investigation into reasonableness of rates).

Law Reviews.

1987 Mississippi Supreme Court Review, Mississippi Public Service Commission. 57 Miss. L. J. 440.

1989 Mississippi Supreme Court Review: Mississippi Public Service Commission. 59 Miss. L. J. 792.

§ 77-3-49. Issuance of process by commission; witnesses.

The commission may issue subpoenas, subpoenas duces tecum and all necessary process in proceedings pending before it. Such process shall extend to all parts of the state and may be served by any person authorized to serve process of courts of record. All process issued by the commission shall be signed by the chairman or secretary of the commission, and the seal of the commission shall be affixed thereto.

The commission and each of the commissioners, for the purpose mentioned in this article, may administer oaths, examine witnesses and certify official acts.

In case of failure on the part of any person or persons to comply with any lawful order of the commission, or with any subpoena or subpoenas duces tecum, or in the case of the refusal of any witness to testify concerning any matter on which he may be interrogated lawfully, any court of record of general jurisdiction or a judge thereof, may on application of the commission compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

HISTORY: Codes, 1942, §§ 7716-15, 7716-16; Laws, 1956, ch. 372, §§ 15, 16.

§ 77-3-51. Depositions by agreement.

Upon agreement of the parties in any proceeding, depositions of any witnesses may be taken and used in evidence pursuant to procedure for taking depositions which may be prescribed by rules and regulations of the commission.

HISTORY: Codes, 1942, § 7716-17; Laws, 1956, ch. 372, § 17.

JUDICIAL DECISIONS

1. In general.

The Mississippi Public Service Commission exceeded its statutory authority in adopting a rule which provided that the deposition of a witness could be taken upon agreement of the parties or in the discretion of the Commission since §77-3-51 clearly gives the right to take and use a deposition only upon agreement of the parties. Mississippi Public Service Com. v. Mississippi Power & Light Co., 593 So. 2d 997, 1991 Miss. LEXIS 993 (Miss. 1991).

§ 77-3-53. Certified copies of documents and orders 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, or any other state or jurisdiction.

HISTORY: Codes, 1942, § 7716-18; Laws, 1956, ch. 372, § 18.

Cross References —

Authority of public officers to certify copies of books, records and the like in their custody and as to the admissibility of such copies in evidence, see §13-1-77.

§ 77-3-55. Orders, findings, authorizations and certificates to be in writing and entered in minutes.

Every order, finding, authorization or certificate issued or approved by the commission under any provisions of this article shall be in writing and entered on the minutes of the commission. A certificate under the seal of the commission that any such order, finding, authorization or certificate has not been modified, stayed, suspended or revoked, shall be received as evidence in any proceeding as to the facts therein stated.

HISTORY: Codes, 1942, § 7716-19; Laws, 1956, ch. 372, § 19.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 181.

CJS.

73B C.J.S., Public Utilities §§ 224-238.

§ 77-3-57. Service on parties.

Service in all hearings, investigations and proceedings pending before the commission shall be made personally in the manner in which process is required by law to be served or by registered or certified mail, as the commission may direct.

HISTORY: Codes, 1942, § 7716-21; Laws, 1956, ch. 372, § 21.

Cross References —

Duty of sheriff to return process on or before return day, see §13-3-37.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 178.

§ 77-3-59. Decisions; compliance with orders.

The commission shall make and file its findings and order, and its opinion, if any. All findings shall be supported by substantial evidence presented and shall be in sufficient detail to enable the court on appeal to determine the controverted questions presented, and the basis of the commission’s conclusion. A copy of such order certified under the seal of the commission, shall be served upon the person against whom it runs, or his attorney, and notice thereof shall be given to the other parties to the proceedings or their attorneys. Said order shall take effect twenty (20) days after 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. If an order cannot, in the judgment of the commission, be complied with within twenty (20) days, 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 its order.

HISTORY: Codes, 1942, § 7716-22; Laws, 1956, ch. 372, § 22; Laws, 1992, ch. 417, § 9, eff from and after passage (approved April 29, 1992).

Cross References —

Enforcement of commission orders, see §77-3-75.

JUDICIAL DECISIONS

1. In general.

Mississippi Public Service Commission’s (Commission) order regarding an increase in rates for water service provided by the company was not supported by substantial evidence and was contrary to the manifest weight of the evidence, Miss. Code Ann. §77-3-59; in fixing the rate, the Commission did not evidence its expertise by incorporating in its order cogent reasons for its decision based on a finding of facts pertinent to the particular inquiry before it. Total Envtl. Solutions, Inc. v. Miss. PSC, 988 So. 2d 372, 2008 Miss. LEXIS 337 (Miss. 2008).

Public Service Commission (PSC) order fixing utility rates should set forth basis on which rates are fixed in accordance with law applicable thereto; otherwise, courts are seriously hampered in review of such order. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

In fixing utility rates, Public Service Commission (PSC) should evidence its expertise by incorporating in its order cogent reasons for its decision based on finding of facts pertinent to particular inquiry before it. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

Public Service Commission (PSC) did not make sufficient findings of fact in its order denying rate increase to water utility; relevant portion of order merely stated that utility was not providing adequate service with money currently available and thus was not entitled to increase, Commission did not set forth persuasive evidence or conclusions drawn from evidence which it used in reaching decision, and Supreme Court on appeal was placed in awkward position of trying to ferret out sufficient evidence from record. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

Letters from public officials and commercial establishments expressing interest in proposed new service were properly considered by the Mississippi Public Service Commission, and supported the Commission’s order granting a certificate of public convenience and necessity to own and operate a radio transmitted paging service. New South Communications, Inc. v. Answer Iowa, Inc., 490 So. 2d 1225, 1986 Miss. LEXIS 2502 (Miss. 1986).

The public service commission did not commit reversible error in granting a certificate of public convenience and necessity to a new telephone common carrier, even though its order did not contain detailed findings of fact. Mississippi Public Service Com. v. AAA Anserphone, Inc., 372 So. 2d 259, 1979 Miss. LEXIS 2024 (Miss. 1979).

In an electric utility rate proceeding, the Chancellor properly found that the Public Service Commission gave no consideration to coverages required for loans and preferred stock sales, where close examination of the commission’s findings and order revealed no treatment therein of coverages, as such, but only as coverages were included in its decision that the rate allowed was sufficient to assure confidence in the integrity of the utility’s finances, so as to maintain its credit and to attract capital. Mississippi Public Service Com. v. Mississippi Power Co., 366 So. 2d 656, 1979 Miss. LEXIS 2204 (Miss. 1979).

The basis of judicial review of the actions of the public service commission is the substantial evidence rule. Capital Electric Power Asso. v. Mississippi Power & Light Co., 216 So. 2d 428, 1968 Miss. LEXIS 1229 (Miss. 1968).

Evidence of depreciated original cost of a utility’s property, particularly if a considerable part is of relatively recent construction, is sufficient to support a determination of the reasonable value upon which the utility is entitled to a fair return. Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Com., 237 Miss. 157, 113 So. 2d 622, 1959 Miss. LEXIS 459 (Miss. 1959).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 181.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 8-10, 26, 37, 50 et seq. (orders of commission).

§ 77-3-61. Alteration of orders.

The commission may at any time, after notice, and after opportunity to be heard as provided in Section 77-3-47, rescind or amend any order or decision made by it. Any order rescinding or amending a prior order or decision shall, when served upon the utility affected and after notice thereof is given to the other parties to the proceedings, have the same effect as original orders or decisions. However, no such order shall affect the legality or validity of any acts done by said utility before service upon it of the notice of such change.

HISTORY: Codes, 1942, § 7716-23; Laws, 1956, ch. 372, § 23.

JUDICIAL DECISIONS

1. In general.

A Public Service Commission (PSC) ruling, which overruled a prior PSC decision by ordering a reduction of a utility company’s water and sewer rates, was not arbitrary and capricious because the PSC may at any time amend or rescind an order, it is within the purview of the PSC to determine the weight of the evidence and the credibility of the witnesses, and the utility company’s failure to follow its service extension policy amounted to a major change in fact since the issuance of the prior order. Rankin Utility Co. v. Mississippi Public Service Com., 585 So. 2d 705, 1991 Miss. LEXIS 503 (Miss. 1991).

§ 77-3-63. Record of proceedings; reporter.

A full and complete record shall be kept of all proceedings had before the commission or any commissioner or any formal hearing. All testimony shall be taken down by a reporter appointed by the commission, whose qualifications and compensations shall be the same as now provided by law for the circuit and chancery court reporters.

HISTORY: Codes, 1942, § 7716-24; Laws, 1956, ch. 372, § 24.

Cross References —

Compensation of court reporters, see §9-13-9.

Qualifications and certification of court reporters, see §§9-13-101 et seq.

§ 77-3-65. Rehearing; stay of order.

After an order or decision has been made by the commission, any party to the proceedings may, within thirty (30) days after the entry of the order or decision, apply for a rehearing in respect of any matters determined in said proceedings and specified in the application for rehearing, and the commission may grant and hold such rehearings on such matters.

The filing of an application for rehearing shall not stay or suspend the effective date of any commission order or the obligation of any person to comply in all respects with such order unless the commission shall, in the exercise of its discretion, stay, suspend or modify such order. Any party to the proceedings shall be entitled to a stay of the order, other than an order resulting from a proceeding under Section 77-3-39, as a matter of right, upon filing with the commission a bond payable to the State of Mississippi in such amount and with sufficient surety, both as determined by the commission, to insure the prompt payment of any damages or refunds to the party or persons entitled thereto, if the order shall, at the conclusion of any subsequent proceedings, become effective. Such damages or refunds shall be paid in full, including interest at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71. In lieu of payment, the utility may credit the service account with the amount due under this section if the consumer entitled to the damages or refund is, at that time, a consumer of the utility.

The commission shall either grant or refuse an application for rehearing within twenty (20) days after the date of application therefor. A failure by the commission to act upon such application within that period shall be deemed refusal thereof. If the application is granted, the commission shall conduct and conclude a rehearing within thirty (30) days of the entry of the order for rehearing and shall enter a new order after the rehearing shall have been concluded, which shall become effective ten (10) days after such order is entered, unless otherwise provided by the commission for reasonable cause.

HISTORY: Codes, 1942, § 7716-25; Laws, 1956, ch. 372, § 25; Laws, 1983, ch. 467, § 24; Laws, 1987, ch. 312, eff from and after July 1, 1987.

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Final orders of commission after rehearings on proposed rate changes, see §77-3-39.

Time allowed for filing appeal from denial of application for rehearing, see §77-3-67.

Time within which direct appeal to supreme court must be filed where authorized, see §77-3-72.

RESEARCH REFERENCES

Am. Jur.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 2, 32, 44-46 (petitions or applications for rehearing).

§ 77-3-67. Appeals to chancery court.

  1. In addition to other remedies now available at law or in equity, any party aggrieved by any final finding, order or judgment of the commission, except those final findings, orders or judgments specified in Section 77-3-72, shall have the right, regardless of the amount involved, of appeal to the chancery court of the judicial district in which the principal place of business of the utility in the state of Mississippi is located. If the court shall find that the appeal has been to the improper venue then the cause shall not be dismissed for such reason but shall be transferred to such proper venue. If an application for rehearing has been filed, an appeal must be filed within thirty (30) days after the application for rehearing has been refused or deemed refused because of the commission’s failure to act thereon within the time specified in Section 77-3-65 or, if the application is granted, within thirty (30) days after the rendition of the decision on rehearing. If an application for rehearing has not been filed, an appeal must be filed within thirty (30) days after the entry of the commission’s order. Every appeal shall state briefly the nature of the proceedings before the commission, and shall specify the order complained of. Any person whose rights may be directly affected by said appeal may appear and become a party, or the court may upon proper notice order any person to be joined as a party.
  2. Upon the filing of an appeal the clerk of the chancery court shall serve notice thereof upon the commission, whereupon the commission shall, within sixty (60) days (or within such additional time as the court may for cause allow) from the service of such notice, certify to the chancery court the record in the case, which record shall include a transcript of all testimony, together with all exhibits or copies thereof, all pleadings, proceedings, orders, findings and opinions entered in the case. However, the parties and the commission may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.
  3. No new or additional evidence shall be introduced in the chancery court but the case shall be determined upon the record and evidence transferred.
  4. The court may hear and dispose of the appeal in termtime or vacation and the court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partly vacated the court may also, in its discretion, remand the matter to the commission for such further proceedings, not inconsistent with the court’s order as, in the opinion of the court, justice may require. The order shall not be vacated or set aside either in whole or in part, except for errors of law, unless the court finds that the order of the commission is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the commission, or violates constitutional rights.

HISTORY: Codes, 1942, § 7716-26; Laws, 1956, ch. 372, § 26; Laws, 1978, ch. 507, § 2; Laws, 1983, ch. 467, § 25, eff from and after January 3, 1984. [See Editor’s Note, below].

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Laws of 1983, ch. 467, § 37, provided that the amendment of §77-3-67 was to become effective from and after adoption by the people of Mississippi of the amendment to Section 146, Mississippi Constitution of 1890, as proposed by Senate Concurrent Resolution No. 514 [Chapter 682] Laws of 1983. The electorate approved the amendment of § 146 of the Constitution, and, by proclamation of the Secretary of was inserted in the Constitution on January 3, 1984.

Cross References —

Appealed commission matters to take preference in all courts, see §77-3-73.

Burden of proof on party seeking to vacate commission order, see §77-3-77.

Application of appeal provisions of this section to determination of commissioner relative to inclusion of cost of purchasing electricity from non-utility generator for period in excess of 30 days as expense item for purpose of calculating rates, see §77-3-95.

JUDICIAL DECISIONS

1. In general.

2. Appeal timely.

3. Standing.

1. In general.

Supreme court had jurisdiction over the orders of the Mississippi Public Service Commission denying a resident’s motion to amend his complaint challenging the grant of a Supplemental Certificate of Public Convenience and Necessity (CCN) to a water, sewer and fire district and dismissing the complaint but not over the grant of the supplemental CCN because the resident attempted to appeal the supplemental CCN decision by way of appealing the Commission’s orders, and the appeal was untimely since it was filed more than four years after the order granting the supplemental CCN; the Commission filed a timely notice in a newspaper that a decentralized system would be implemented, and the resident was notified of the planned implementation when the district adopted an ordinance, published notice concerning the adoption of the ordinance, and then passed the ordinance after a public hearing at which no one expressed opposition. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

Utility customers who never sought intervention in a rate increase proceeding never became parties and, therefore, did not have standing to appeal from the final order of the Public Service Commission. North Miss. Util. Co. v. Wentworth, 604 So. 2d 218 (Miss. 1992).

So long as Public Service Commission examines and considers evidence and testimony of each expert witness who appears in rate change proceeding and does not ignore salient and substantial factors offered into evidence, Commission has prerogative on disputed issue to adopt whichever expert’s view it chooses to give credence to; in such case, court cannot disturb Commission’s ruling. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

Landowners in condemnation proceedings were not barred from securing a dismissal of the condemnation proceedings, even though they failed to comply with 30 day requirement of §77-3-67, since the owners had no knowledge or notice about condemnation order. Mississippi Power & Light Co. v. Conerly, 460 So. 2d 107, 1984 Miss. LEXIS 2080 (Miss. 1984).

On appeal by a public telephone company from an order of the Public Service Commission denying its proposed rate increase and allowing only a 10% overall increase, the chancellor properly exercised his discretion in finding, pursuant to §77-3-67(4), that the denial of the higher increase sought by the telephone company was not supported by substantial evidence and was against the manifest weight of undisputed evidence, where the commission failed to fix a rate base as required by §77-3-43, failed to fix a rate of return related to a legally formulated rate base as required by §§77-3-33(1) and77-3-39, and arbitrarily fixed a 10% increase in rates when it appeared certain that compliance with that increase would result in a substantial loss; however, the chancellor erred in fixing a rate base and a rate of return, even though he arrived at amounts warranted by the proof, as §77-3-67(4) provides instead for a remand of the cause to the commission. Mississippi Public Service Com. v. Hughes Tel. Co., 376 So. 2d 1074, 1979 Miss. LEXIS 2512 (Miss. 1979).

The chancellor, in reversing the Public Service Commission’s order in an electric utility rate case on the grounds that it was contrary to the overwhelming weight of the evidence, was unsupported by substantial evidence, and was confiscatory in its effect on the public utility company, did not undertake to substitute himself in place of the Commission, but rather properly confined himself to the duties and authority specifically reserved to him by statute. Mississippi Public Service Com. v. Mississippi Power Co., 366 So. 2d 656, 1979 Miss. LEXIS 2204 (Miss. 1979).

Since the rate making authority is legislative in character, it rests within the power of the commission; the authority of the court to enjoin or restrain imposition of confiscatory rates does not carry with it the power to establish the rate. Mississippi Public Service Com. v. Mississippi Power Co., 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

Where record of commission proceeding revealed that the commission’s order denying a rate change was not supported by any substantial evidence and amounted to the imposition of a confiscatory rate, chancery court order remanding matter to commission was reversed and judgment was entered approving increase. Mississippi Public Service Com. v. Mississippi Valley Gas Co., 327 So. 2d 296, 1976 Miss. LEXIS 1782 (Miss.), limited, Mississippi Public Service Com. v. Mississippi Power Co., 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

It was not necessary to remand case to Public Service Commission where Supreme Court determined that order of the Commission denying rate increase requested by Mississippi power company was not supported by substantial evidence and amounted to imposition of confiscatory rates which might be restrained by Supreme Court. Mississippi Power Co. v. Mississippi Public Service Com., 291 So. 2d 541, 1974 Miss. LEXIS 1727 (Miss. 1974), limited, 337 So. 2d 936, 1976 Miss. LEXIS 1602 (Miss. 1976).

The basis of judicial review of the actions of the public service commission is the substantial evidence rule. Capital Electric Power Asso. v. Mississippi Power & Light Co., 216 So. 2d 428, 1968 Miss. LEXIS 1229 (Miss. 1968).

No appeal lies to the chancery court from interlocutory orders of the public service commission. Mississippi Power Co. v. Mississippi Public Service Com., 240 Miss. 621, 128 So. 2d 351, 1961 Miss. LEXIS 492 (Miss. 1961).

Since the function of rate making is purely legislative in character, a court is without power to fix the rates to be charged by public utilities, but may restrain the imposition of confiscatory rates, or, under the Public Utility Act, determine whether rates as fixed are supported by substantial evidence, or within the other statutory restrictions set forth in this section. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

This section supersedes Code 1942, § 7699, providing for appeals to the circuit court of Hinds County within six months. Mississippi Valley Gas Co. v. Jackson, 236 Miss. 81, 109 So. 2d 637, 1959 Miss. LEXIS 297 (Miss. 1959).

Appeal, and not certiorari, is the proper way to obtain review of a commission order granting a certificate of convenience and necessity to a gas company. Mississippi Valley Gas Co. v. Jackson, 236 Miss. 81, 109 So. 2d 637, 1959 Miss. LEXIS 297 (Miss. 1959).

2. Appeal timely.

Chancery court erred in finding that it was without jurisdiction to hear the resident’s appeal of the denial of his motion to amend his complaint challenging the Mississippi Public Service Commission’s grant of a Supplemental Certificate of Public Convenience and Necessity to a water, sewer, and fire district because the resident appealed within the thirty-day statutory deadline of the final order dismissing his complaint, Miss. Code Ann. §77-3-67(1); the resident was not required to appeal the denial of his motion to amend within thirty days of the order because the thirty-day appeal deadline applied only to the final order. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

3. Standing.

Because a resident was not a party to the Mississippi Public Service Commission’s decision to grant a water, sewer, and fire district a supplemental Supplemental Certificate of Public Convenience and Necessity, he could not appeal from that decision. Green v. Cleary Water, Sewer & Fire Dist., 17 So.3d 559, 2009 Miss. LEXIS 430 (Miss. 2009), cert. denied, 559 U.S. 971, 130 S. Ct. 1691, 176 L. Ed. 2d 181, 2010 U.S. LEXIS 2154 (U.S. 2010).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 183 et seq.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 61 et seq. (judicial review).

§ 77-3-69. Stay of orders pending appeal.

  1. The pendency of proceedings to review shall not of itself stay or suspend the operation of the order of the commission. However, any party may, as a matter of right, secure from the court in which a review of or an appeal from the order of the commission not related to changing rates or rate design is sought, an order suspending or staying the operation of the order of the commission pending a review of such order, by adequately securing the other parties against loss due to the delay in the enforcement of the order in case the order under review is affirmed, the security to be in such form and amount as shall be directed by the court granting the stay or suspension.
  2. If an appeal to the chancery court be taken from an order of the commission reducing existing rates or refusing to approve rates proposed by a utility, the utility, if it is not then collecting under refunding bond rates in excess of rates which have been ordered by the commission, may request upon motion filed in the chancery court an order allowing the utility to place into effect forthwith interim rates which may be charged and collected, subject to refund as hereinafter provided, pending final determination of the rate proceeding. The court may, in its discretion, upon a finding that undue hardship or irreparable injury to the utility or the public interest would probably result otherwise, allow the utility to place into effect such interim rates at a revenue level up to, but not exceeding, the proposed rates. The court may allow the utility to collect all or part of a proposed rate increase. However, before such increased rates can take effect, the utility shall file with the court a bond in a reasonable amount approved by the court, with sureties approved by the court, conditioned upon the refund, with interest at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71, to the parties entitled thereto, of the amount of the excess if the existing rate or rates or the rate or rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility. If the court does not dispose of the motion for interim rates as contemplated herein within thirty (30) days of the filing of such motion, then the public utility, as a matter of right, may place into effect forthwith fifty percent (50%) of that portion of the proposed rate schedule not allowed by the commission’s order, pending final determination of the appeal, upon filing with the court a surety bond in the same manner as previously provided for herein.
  3. If the court does not make a final determination and adjudication of the rate proceeding within one hundred eighty (180) days after the record has been certified and filed, or if the court remands the matter to the commission for further proceedings and the commission has not entered its order allowing rates within forty-five (45) days from the time of receipt of the mandate of the court, or if the commission has at any time entered its order after remand and an appeal therefrom has been taken, then, in any such case, the public utility may, as a matter of right, place into effect the entire proposed rate schedule, under refunding bond, as provided for in this section or in Section 77-3-39, whichever is applicable. Interim rates under refunding bond charged by the utility under this subsection shall terminate upon final disposition of the rate proceeding without timely appeal.

HISTORY: Codes, 1942, § 7716-27; Laws, 1956, ch. 372, § 27; Laws, 1983, ch. 467, § 26, eff from and after passage (approved April 6, 1983).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Computation of interest to be paid by public utilities on refunds of excess rates, see §75-17-35.

Interest on refunds of fuel adjustment costs or charges found to be unjust or unreasonable, see §77-3-42.

Interest on damages or refunds ordered as result of rehearing, see §77-3-65.

Security and bond required on appeal to supreme court, see §77-3-71.

Interest on refunds of moneys collected pending direct appeal to supreme court at interim rates subsequently determined by court to be excessive, see §77-3-72.

Appealed commission matters to take preference in all courts, see §77-3-73.

Application of appeal provisions of this section to determination of commissioner relative to inclusion of cost of purchasing electricity from non-utility generator for period in excess of 30 days as expense item for purpose of calculating rates, see §77-3-95.

JUDICIAL DECISIONS

1. In general.

Finding of Public Service Commission that telephone company seeking rate increase has not met required burden of proof may not be reversed on appeal to chancery court where finding is based on sharply conflicting testimony offered for and against increase. Mississippi Public Service Com. v. South Cent. Bell Tel. Co., 464 So. 2d 1133, 1984 Miss. LEXIS 2038 (Miss. 1984).

A refunding bond by a utility seeking to put into effect an increase in rates pending a determination of their validity, should continue in effect pending a final determination. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

§ 77-3-71. Appeals to supreme court.

Appeals in accordance with law may be had to the Supreme Court of the State of Mississippi from any final judgment of the chancery court.

If the party taking the appeal has theretofore furnished security as provided in Sections 77-3-39 and 77-3-69, and has filed a bond conditioned as provided in Sections 77-3-39 and 77-3-69, the taking of an appeal to the supreme court shall operate as a supersedeas without the furnishing of further security or bond. In such cases the supreme court may, upon application to it, require such additional security, or such additional bond conditioned as provided in Sections 77-3-39 and 77-3-69, as in its opinion will adequately secure the other party to the appeal, or parties who may become entitled to refunds, against loss in the event the judgment under review is affirmed.

If an appeal to the supreme court be taken from a final judgment of the chancery court which alters an order of the commission by approving a level of revenue in excess of that allowed by the commission’s order, the public utility may, as a matter of right, place such level of revenue which has been so approved by the chancery court in such final judgment into effect, pending final determination of the appeal to the supreme court, upon filing with the supreme court a bond in a reasonable amount approved by such court, with sureties approved by such court, conditioned upon the refund with interest at the lawful rate to the parties entitled thereto, of the amount of the excess if the rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this section if the consumer entitled to the refund, is at that time, a consumer of the utility.

In addition to the foregoing, if an appeal to the supreme court be taken from a final judgment of the chancery court with respect to a proceeding for determination of rates, and the public utility is not then collecting under refunding bond rates in excess of rates which have been ordered by the commission, such utility may request upon motion filed in the supreme court an order allowing the utility to place into effect forthwith interim rates which may be charged and collected, subject to refund as hereinafter provided, pending final determination of the rate proceeding. The court may, in its discretion, upon a hearing by not fewer than three (3) justices and upon a finding that undue hardship or irreparable injury to the utility or the public interest would probably result otherwise, allow the utility to place into effect such interim rates at a revenue level up to, but not exceeding, the proposed rates. The court may allow the utility to collect all or part of a proposed rate increase. However, before such increased rates can take effect, the utility shall file with the court a bond in a reasonable amount approved by the court, with sureties approved by the court, conditioned upon the refund, with interest at the lawful rate, to the parties entitled thereto, of the amount of the excess after the existing rate or rates or the rate or rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this section if the consumer entitled to the refund is, at that time, a consumer of the utility.

If the court does not dispose of the motion for interim rates as contemplated herein within thirty (30) days of the filing of such motion, then the public utility, as a matter of right, may place into effect forthwith fifty percent (50%) of that portion of the proposed rate schedule not allowed by the commission’s order, pending final determination of the appeal, upon filing with the court a surety bond in the same manner as previously provided for herein. If the court does not make a final determination and adjudication of the rate proceeding within one hundred eighty (180) days after the record has been certified and filed, or if the court remands the matter to the commission for further proceedings and the commission has not entered its order allowing rates within forty-five (45) days from the time of receipt of the mandate of the court, or if the commission has at any time entered its order after remand and an appeal therefrom has been taken, then, in any such case, the public utility may, as a matter of right, place into effect the entire proposed rate schedule, under refunding bond, as provided for in this section or in Section 77-3-39, whichever is applicable. Interim rates under refunding bond charged by the utility under this subsection shall terminate upon final disposition of the rate proceeding without timely appeal.

HISTORY: Codes, 1942, § 7716-28; Laws, 1956, ch. 372, § 28; Laws, 1983, ch. 467, § 27, eff from and after passage (approved April 6, 1983).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Appeals to supreme court from final decrees of chancery court generally, see §11-51-3.

Computation of interest to be paid by public utilities on refunds of excess rates, see §75-17-35.

Interest on refunds of fuel adjustment costs or charges found to be unjust or unreasonable, see §77-3-42.

Interest on damages or refunds ordered as result of rehearing, see §77-3-65.

Interest on refunds of moneys collected under bond pending appeal to chancery court at interim rates subsequently determined to be excessive, see §77-3-69.

Interest on refunds of moneys collected pending direct appeal to supreme court at interim rates subsequently determined by court to be excessive, see §77-3-72.

Appealed commission matters to take preference in all courts, see §77-3-73.

Application of appeal provisions of this section to determination of commissioner relative to inclusion of cost of purchasing electricity from non-utility generator for period in excess of 30 days as expense item for purpose of calculating rates, see §77-3-95.

JUDICIAL DECISIONS

1. In general.

So long as Public Service Commission examines and considers evidence and testimony of each expert witness who appears in rate change proceeding and does not ignore salient and substantial factors offered into evidence, Commission has prerogative on disputed issue to adopt whichever expert’s view it chooses to give credence to; in such case, court cannot disturb Commission’s ruling. State ex rel. Pittman v. Mississippi Public Service Com., 481 So. 2d 302, 1985 Miss. LEXIS 2418 (Miss. 1985).

A refunding bond by a utility seeking to put into effect an increase in rates pending a determination of their validity, should continue in effect pending a final determination. Mississippi Public Service Com. v. Home Tel. Co., 236 Miss. 444, 110 So. 2d 618, 1959 Miss. LEXIS 339 (Miss. 1959).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 183 et seq.

§ 77-3-72. Direct appeals to supreme court from decisions of public service commission involving filings for rate changes.

  1. Any party aggrieved by any final finding, order or judgment of the commission in any utility rate proceedings involving a filing for a rate change of any public utility as described in Section 77-3-3(d)(i), (d)(ii), or (d)(iii), shall have the right, regardless of the amount involved, of direct appeal to the Mississippi Supreme Court. If an application for rehearing has been filed, an appeal must be filed within thirty (30) days after the application for rehearing has been refused or deemed refused because of the commission’s failure to act thereon within the time specified in Section 77-3-65 or, if the application is granted, within thirty (30) days after the rendition of the decision on rehearing. If an application for rehearing has not been filed, an appeal must be filed within thirty (30) days after the entry of the commission’s order. Every appeal shall state briefly the nature of the proceedings before the commission, and shall specify the order complained of. Any person whose rights may be directly affected by said appeal may appear and become a party or the court may, upon proper notice, order any person to be joined as a party.
  2. Upon the filing of an appeal the clerk of the supreme court shall serve notice thereof upon the commission, whereupon the commission shall, within sixty (60) days (or within such additional time as the court may for cause allow) from the service of such notice, certify to the court the record in the case, which record shall include a transcript of all testimony, together with all exhibits or copies thereof, all pleadings, proceedings, orders, findings and opinions entered in the case. However, the parties and the commission may stipulate that a specified portion only of the record shall be certified to the court as the record on appeal.
    1. Any utility aggrieved by an order of the public service commission with respect to a proceeding before the commission for determination of rates, and which has filed in the supreme court an appeal therefrom pursuant to this chapter, and which is not then collecting under refunding bond rates in excess of rates which have been ordered by the commission, may request upon motion filed in the supreme court an order allowing the utility to place into effect forthwith interim rates which may be charged and collected, subject to refund as hereinafter provided, pending final determination of the rate proceeding. The court may in its discretion, upon a hearing by not fewer than three (3) justices and upon a finding that undue hardship or irreparable injury to the utility or the public interest would probably result otherwise, allow the utility to place into effect such interim rates at a revenue level up to, but not exceeding, the proposed rates. The court may allow the utility to collect all or part of a proposed rate increase. However, before such increased rates can take effect, the utility shall file with the court a bond in a reasonable amount approved by the court, with sureties approved by the court, conditioned upon the refund, with interest at the same rate prescribed in Section 77-3-39, Section 77-3-69 and Section 77-3-71, to the parties entitled thereto, of the amount of the excess if the existing rate or rates or the rate or rates so put into effect are finally determined to be excessive. In lieu of payment, the utility may credit the service account with the amount due under this subsection if the consumer entitled to the refund is, at that time, a consumer of the utility.
    2. If the court does not dispose of the motion for interim rates as contemplated in paragraph (a) of this subsection within thirty (30) days of the filing of such motion, then the public utility, as a matter of right, may place into effect forthwith fifty percent (50%) of that portion of the proposed rate schedule not allowed by the commission’s order, pending final determination of the appeal, upon filing with the court a surety bond in the same manner as provided for in paragraph (a) of this subsection.
  3. If the court does not make a final determination and adjudication of the rate proceeding within one hundred eighty (180) days after the record has been certified and filed, or if the court remands the matter to the commission for further proceedings and the commission has not entered its order allowing rates within forty-five (45) days from the time of receipt of the mandate of the court, or if the commission has at any time entered its order after remand and an appeal therefrom has been taken, then, in any such case, the public utility may, as a matter of right, place into effect the entire proposed rate schedule, under refunding bond, as provided for in this section or in Section 77-3-39, whichever is applicable. Interim rates under refunding bond charged by the utility under this subsection shall terminate upon final disposition of the rate proceeding without timely appeal. The court may hear and dispose of the appeal in termtime or vacation and the court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partly vacated the court may also, in its discretion, remand the matter to the commission for such further proceedings, not inconsistent with the court’s order as, in the opinion of the court, justice may require. The order shall not be vacated or set aside either in whole or in part, except for errors of law, unless the court finds that the order of the commission is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the commission, or violates constitutional rights.

HISTORY: Laws, 1983, ch. 467, § 28, eff from and after January 3, 1984. [See Editor’s Note, below].

Editor’s Notes —

Laws of 1983, ch. 467, § 37, provided that the insertion of §77-3-72 was to become effective from and after adoption by the people of Mississippi of the amendment to Section 146, Mississippi Constitution of 1890, as proposed by Senate Concurrent Resolution No. 514 [Chapter 62], Laws of 1983. The electorate approved the amendment of § 146 of the Constitution, and, by proclamation of the Secretary of State, State, was inserted in the Constitution on January 3, 1984.

Cross References —

Appeals to chancery court from findings, orders and judgments of public service commission not subject to this section, see §77-3-67.

Appealed commission matters to take preference in all courts, see §77-3-73.

Burden of proof on party seeking to vacate commission order, see §77-3-77.

JUDICIAL DECISIONS

1. In general.

Public Service Commission improperly sealed information to which the public was entitled because it erred in determining that rate-impact information was confidential and concealed from the ratepayers the amount of the projected increases; the Commission’s decision to govern in a cloak of secrecy and grant confidentiality to rate-impact information was arbitrary and capricious. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Public Service Commission erred in granting rate increases for a power company because it failed to comply with the Base Load Act and exceeded its authority granted by the Act; by stipulation, the Commission improperly deferred prudency hearings, which were a prerequisite to granting an increase in rates, and in the absence of prudency hearings, a rate could not be arbitrarily declared as fair, just, and reasonable. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Public Service Commission’s (PSC) denial of any rate increase to water utility was unsupported by substantial evidence and was contrary to manifest weight of the evidence in utility rate case, warranting reversal and remand to Commission for determination of amount of rate increase, despite Commission’s finding that utility was not providing adequate service; denial of rate increase was apparently punitive, utility had been receiving the same base monthly rate from customers for five years, experts testified that, despite competent economic management, existing base rate resulted in ongoing losses to utility, even intervenors conceded that utility was entitled to some increase, and services that utility provided were worth more than present base rate. White Cypress Lakes Water v. Mississippi PSC, 703 So. 2d 246, 1997 Miss. LEXIS 462 (Miss. 1997).

The Public Service Commission (PSC) is an arm of the legislature. While the utility has the burden of proving by substantial evidence that it clearly is entitled to a requested rate increase, the order of the PSC presumptively is considered valid. Due to its expertise, the PSC is the trier of fact and within this province it has the right to determine the weight of the evidence, the reliability of estimates and the credibility of the witnesses, and it is free to accept or reject the recommendations of any of the witnesses. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 387, 1989 Miss. LEXIS 10 (Miss. 1989).

§ 77-3-73. Appealed commission matters to take preference in all courts.

All commission matters appealed to any court shall take preference over other cases as a matter affecting the public interest, and all courts shall docket and dispose of such causes at the earliest moment compatible with the ends of justice.

HISTORY: Codes, 1942, § 7716-29; Laws, 1956, ch. 372, § 29.

Cross References —

Application of appeal provisions of this section to determination of commissioner relative to inclusion of cost of purchasing electricity from non-utility generator for period in excess of 30 days as expense item for purpose of calculating rates, see §77-3-95.

§ 77-3-75. Enforcement of commission orders.

The commission may apply to the chancery court, First Judicial District of Hinds County, Mississippi, for enforcement, by mandamus, injunction or other appropriate remedy, of any order of the commission.

HISTORY: Codes, 1942, § 7716-30; Laws, 1956, ch. 372, § 30.

JUDICIAL DECISIONS

1. In general.

Although two certificated rural waterworks corporations had an adequate remedy under this section to protect their franchises against encroachment by an adjacent municipality, the federal court will not deny jurisdiction where a substantial federal question exists. Southeast Winston Rural Water Asso. v. Louisville, 303 F. Supp. 974, 1969 U.S. Dist. LEXIS 10375 (N.D. Miss. 1969).

The public service commissioner’s method of enforcing a cease and desist order is by applying for an injunction. Brotherhood of R. Trainmen v. Illinois C. R. Co., 243 Miss. 851, 138 So. 2d 908, 1962 Miss. LEXIS 412 (Miss. 1962).

§ 77-3-77. Burden of proof on party seeking to vacate commission order.

In all actions and proceedings arising under the provisions of this article or growing out of the exercise of the authority and powers herein granted to the commission, the burden of proof shall be on the party seeking to vacate an order of said commission.

HISTORY: Codes, 1942, § 7716-31; Laws, 1956, ch. 372, § 31.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities §§ 180, 192.

CJS.

73B C.J.S., Public Utilities § 267.

§ 77-3-79. Reports by utilities; inspection of records; filing deadlines; penalties.

The commission may require, by order served on any public utility in the manner provided in this chapter for the service of orders, the filing of such relevant reports, information or data at such time and place as it may reasonably designate.

The commission shall at all reasonable times have access to and the right to inspect and examine all accounts, records, memoranda and property of the public utilities, and it shall be the duty of such public utilities to furnish to the commission, within such reasonable time as the commission may order, any information with respect thereto which the commission may by order require, including copies of maps, contracts, reports of engineers, and other data, records and papers, and to grant to all agents of the commission free access to its property and accounts, records and memoranda when requested so to do. It shall be unlawful for any member, officer, agent or employee of the commission knowingly and willingly to divulge any fact or information which may come to his knowledge during the course of any examination or inspection made under authority of this chapter, except as he may be directed by the commission or by a court or a judge thereof.

The commission shall require an annual reporting from each public utility, the rates of which are subject to regulation under the provisions of this chapter, of all its expenditures for business gifts and entertainment, and institutional, consumption-inducing and other advertising or public relations expenses which the utility claims should be allowed for rate-making purposes. The commission shall not allow as costs or expenses for rate-making purposes any of these expenditures which the commission determines not to be in the public interest. The cost of legislative-advocacy expenses shall not in any case be allowed as costs or expenses for rate-making purposes. Reasonable charitable or civic contributions shall be allowed as cost of service not to exceed amounts established by regulations adopted by the commission.

The commission shall establish filing deadlines for any required periodical reports but in no event shall the filing of such reports exceed sixty (60) days from the due date established by the commission. The commission shall have the authority to extend by order the time of compliance upon a finding that a matter of great urgency exists which would make compliance inequitable. The order extending the time for compliance shall fully set forth the facts justifying such extension. Any public utility which does not furnish such reports, information or other data by the deadlines established by the commission or within the extended time authorized by the commission shall be fined not more than One Thousand Dollars ($1,000.00) per day for each day in violation of the requirements herein that such reports, information or other data are not furnished to the commission.

HISTORY: Codes, 1942, § 7716-20; Laws, 1956, ch. 372, § 20; Laws, 1983, ch. 467, § 29; Laws, 1990, ch. 513, § 1, eff from and after passage (approved April 2, 1990).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, effective from and after April 6, 1983, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Cross References —

Enforcement of commission orders, see §77-3-75.

Violations of orders, penalties, see §77-3-81.

Penalties for violations are cumulative, see §77-3-83.

JUDICIAL DECISIONS

1. In general.

A performance evaluation plan that relegated to cost-of-service 50 percent of all charitable contributions made by the Mississippi Power Company was an arbitrary allegation of charitable contributions and, therefore, was not “reasonable” as required by §77-3-79. State ex rel. Pittman v. Mississippi Public Service Com., 538 So. 2d 367, 1989 Miss. LEXIS 12 (Miss. 1989).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 150.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-81. Violations of article or orders of commission; furnishing to commission of false testimony, reports, records, etc.

    1. Any person or corporation which willfully and knowingly violates any provision of this article or which fails, omits or neglects to obey, observe or comply with any lawful order, or any part or provision thereof, of the commission shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than Two Thousand Five Hundred Dollars ($2,500.00), which shall be deposited in the State General Fund.
    2. Every violation of the provisions of this article or of any lawful order of the commission, or any part or portion thereof by any corporation or person is a separate and distinct offense, and in case of a continuing violation after a first conviction, each day’s continuance thereof shall be deemed to be a separate and distinct offense.
  1. Any person who knowingly or intentionally gives false testimony at any hearing held by the commission, a commissioner or a hearing examiner, or who knowingly or intentionally makes false reports to the commission, when the testimony and reports are required by this article or any lawful order or rule of the commission, or who knowingly or intentionally makes any false entries upon the books or records of any public utility subject to review by the commission, or who knowingly or intentionally makes or preserves any false or misleading vouchers, memoranda or records showing the nature of, or purpose for, the disbursement of funds of such public utilities, shall be deemed guilty of a felony and, upon conviction, shall be committed to the custody of the State Department of Corrections for a period of not less than one (1) year nor more than ten (10) years for every offense.

HISTORY: Codes, 1942, §§ 7716-32, 7716-33; Laws, 1956, ch. 372, §§ 32, 33; Laws, 1991, ch. 562, § 2, eff from and after passage (approved April 2, 1991).

Cross References —

Proceedings for enforcement of statutes administered by commission or regulations or orders of commission generally, see §77-1-53.

Enforcement of orders, see §77-3-75.

Penalties for violations of commission orders are cumulative, see §77-3-83.

Jurisdiction and limitation period for actions under this section, see §77-3-85.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor or felony violation, see §99-19-73.

§ 77-3-83. Penalties are cumulative.

All penalties accruing under this article shall be cumulative, and a suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty or forfeiture or be a bar to any criminal prosecution against any public utility or any officer, director, agent or employee thereof or any other corporation or person.

HISTORY: Codes, 1942, § 7716-34; Laws, 1956, ch. 372, § 34.

§ 77-3-85. Jurisdiction of actions to recover penalties and criminal prosecutions; limitation of actions.

Actions to recover penalties under this article, and criminal prosecutions under subsection (2) of Section 77-3-81, shall be brought in the name of the State of Mississippi in any court of competent jurisdiction. No action for penalty under subsection (1) of Section 77-3-81 may be maintained after the expiration of one (1) year from the date of the act of which complaint is made.

HISTORY: Codes, 1942, § 7716-35; Laws, 1956, ch. 372, § 35; Laws, 1991, ch. 562, § 3, eff from and after passage (approved April 12, 1991).

Cross References —

Proceedings for enforcement of statutes administered by commission or regulations or orders of commission generally, see §77-1-53.

§ 77-3-87. Utilities taxed for expense of regulation by commission; collection of tax; adjustment of tax rate; funding of agency expenses; deposit of monies into State General Fund.

All reasonable and necessary expenses of the administration of the duties imposed on the public utilities staff and on the commission by Title 77, Mississippi Code of 1972, excluding the reasonable and necessary expenses of the administration and enforcement by the commission of the laws of this state pursuant to Chapters 7 and 9, Title 77, Mississippi Code of 1972, shall be provided as follows: There is hereby levied a tax upon (a) all utilities, the rates of which are subject to regulation by the provisions of this chapter and upon (b) all utilities not subject to such rate regulation which furnish to the ultimate consumer utility services of the type described by subparagraph (i) of paragraph (d) of Section 77-3-3 and otherwise subject to regulation by the provisions of this chapter, such levy to be effective on the first day of each year and to be calculated as follows: The rate of the tax shall be one hundred sixty-four thousandths of one percent (164/1000 of 1%) per year, of the gross revenues from the intrastate operations of the utilities taxed under this section. The rate of the tax for electric power associations and rural electrification authorities shall be ninety thousandths of one percent (90/1000 of 1%) per year of the gross revenues from the intrastate operations of electric power associations and rural electrification authorities taxed under this section. Effective July 1, 2017, the sum of all taxes levied by this section shall not exceed the total legislative appropriation of monies for the Public Utilities staff and the Public Service Commission for the ensuing fiscal year. The commission and the executive director of the public utilities staff shall certify to the Department of Revenue the amount of legislative appropriations of monies for the regulation of utilities. The Department of Revenue shall adjust the tax rates on a pro rata basis to generate the necessary revenues established by such legislative appropriations. Each utility which is subject to the tax levied by this section shall file a statement of its gross revenue by April 1 of each year showing the gross revenue for the preceding year’s operation. These statements of gross revenue shall be filed with the Department of Revenue on forms prescribed and furnished by the Department of Revenue. The Department of Revenue shall file a copy of these statements of gross revenue with the public utilities staff and the commission. The Department of Revenue shall calculate the amount of tax to be paid by each of the utilities and shall submit a statement thereof to the respective utilities, and the amount shown due in the statements to the utilities shall be paid by them within thirty (30) days thereafter to the Department of Revenue. The Department of Revenue shall furnish the public utilities staff and the commission with an itemized list showing gross and net revenues, assessments, tax collections and other related information for the respective utilities. The Department of Revenue shall deposit these funds into the General Fund if the State Treasury on the same day collected.

All administrative provisions of the Mississippi Sales Tax Law, including those which fix damages, penalties and interest for nonpayment of taxes and for noncompliance with the provisions of such chapter, and all other duties and requirements imposed upon taxpayers, shall apply to all persons liable for taxes under the provisions of this chapter, and the Commissioner of Revenue shall exercise all the power and authority and perform all the duties with respect to taxpayers under this chapter as are provided in the Mississippi Sales Tax Law except where there is a conflict, then the provisions of this chapter shall control. The term “gross revenue ” as used in this section is the total amount of all revenue derived by each of the utilities from its intrastate operations, which are subject to rate regulation under the provisions of this chapter or which constitute utility services of the type described by subparagraph (i) of paragraph (d) of Section 77-3-3 and which are regulated by this chapter and furnished to ultimate consumers. The Department of Revenue is hereby authorized to use all tax returns of any utilities available to it and to make audits as may be deemed necessary of all records of utilities in order to correctly determine the amount of such gross revenue.

All proceeds of the above-mentioned tax are hereby allocated to the public utilities staff and to the commission in the manner provided in this section for the purpose of this chapter.

Each utility subject to the provisions of this section shall be allowed to recover, through the use of a rate adjustment clause or rider, the total amount of taxes paid by the utility pursuant to this section for the reasonable and necessary expenses of the commission and the public utilities staff.

From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Codes, 1942, § 7716-36; Laws, 1956, ch. 372, § 36; Laws, 1966, ch. 626, § 1; Laws, 1968, ch. 505, § 1; Laws, 1970, ch. 427, § 1; Laws, 1973, ch. 443, § 1; Laws, 1974, ch. 369; Laws, 1977, ch. 436; Laws, 1980, ch. 559, § 1; Laws, 1983, ch. 467, § 30; Laws, 1984, ch. 478, § 31; Laws, 1987, ch. 343, § 6; Laws, 1991, ch. 525, § 1; Laws, 1992, ch. 517, § 1; reenacted and amended, Laws, 1993, ch. 537, § 1; Laws, 1998, ch. 458, § 4; Laws, 2000, ch. 613, § 1; Laws, 2016, ch. 459, § 48; Laws, 2017, 1st Ex Sess, ch. 7, § 38, eff from and after passage (approved June 23, 2017).

Editor’s Notes —

Laws of 1983, ch. 467, § 36, provides as follows:

“SECTION 36. This act shall not affect any case or proceeding which is pending before the Mississippi Public Service Commission or any court of this state at the time this act becomes effective, and any such case or proceeding shall be concluded in accordance with such law and administrative rules and regulations promulgated pursuant thereto as existed immediately prior to the effective date of this act.”

Laws of 1984, ch. 478, § 3, provides that, for purposes of this section, requirements that funds be deposited on the same day “collected” shall mean when remittances of tax collections and reports in connection therewith shall have been subjected to only minimum essential but expeditious processing.

Laws of 1984, ch. 478, § 35, provides that “The provisions of this act shall control if in conflict with any other statute, the operation of which would tend to frustrate the purposes of this act.”

Laws of 1991, ch. 525, § 8, provides as follows:

“SECTION 8. Nothing in Section 1 of this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under Chapter 3, Title 77, Mississippi Code of 1972, before the date on which Section 1 of this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which Section 1 of this act becomes effective or are begun thereafter; and the provisions of Chapter 3, Title 77, Mississippi Code of 1972, are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which Section 1 of this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.”

Laws of 1992, ch. 517, § 2, effective from and after passage (approved May 14, 1992), provides as follows:

“SECTION 2. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under Chapter 3, Title 77, Mississippi Code of 1972, before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of Chapter 3, Title 77, Mississippi Code of 1972, are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.”

Laws of 2000, ch. 613, § 2, provides:

“SECTION 2. Nothing in this act shall affect or defeat any claim, assessment, appeal, suit, right or cause of action for taxes due or accrued under Chapter 3, Title 77, Mississippi Code of 1972, before the date on which this act becomes effective, whether such claims, assessments, appeals, suits or actions have been begun before the date on which this act becomes effective or are begun thereafter; and the provisions of Chapter 3, Title 77, Mississippi Code of 1972, are expressly continued in full force, effect and operation for the purpose of the assessment, collection and enrollment of liens for any taxes due or accrued and the execution of any warrant under such laws before the date on which this act becomes effective, and for the imposition of any penalties, forfeitures or claims for failure to comply with such laws.”

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 1998 amendment deleted provisions relating to interest and penalties at the end of the first paragraph and rewrote provisions at the beginning of the second paragraph relating to collection and administration of the provisions of this section so as to specify the applicability of administrative provisions of the Mississippi Sales Tax Law.

The 2000 amendment rewrote the first paragraph; and added the last paragraph.

The 2016 amendment substituted “Department of Revenue” for “State Tax Commission” and “Commissioner of Revenue” for “Tax Commissioner” throughout; added the last two paragraphs; and made a minor stylistic change in the first sentence of the first paragraph.

The 2017 amendment, effective June 23, 2017, in the first paragraph, rewrote the third sentence, which read: “The sum of all taxes levied by this section shall not exceed the total legislative appropriation of monies from the ‘Public Utilities Staff Regulation Fund’ and the ‘Public Service Commission Regulation Fund’ for the ensuing fiscal year,” and rewrote the last sentence, which read: “The Department of Revenue shall pay these funds into the State Treasury on the same day collected to the credit of the ‘Public Utilities Staff Regulation Fund’ and to the ‘Public Service Commission Regulation Fund’ in the proportion that the legislative appropriation of monies from each fund for the regulation of utilities for the ensuing fiscal year bears to the total legislative appropriation of monies from both funds for the regulation of utilities for the ensuing fiscal year.”

Cross References —

State tax commission, generally, see §§27-3-1 et seq.

Mississippi Sales Tax Law, see §27-65-1, et seq.

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Public Service Commission Regulation Fund, see §77-1-6.

Public Utilities Staff Regulation Fund, see §77-2-19.

RESEARCH REFERENCES

Practice References.

Accounting for Public Utilities (Matthew Bender).

Taxation of Public Utilities (Matthew Bender).

JUDICIAL DECISIONS

1. In general.

A pipe-line company whose sales are in interstate commerce is not chargeable with a pro rata share of the cost of regulating utilities. United Gas Pipe Line Co. v. Mississippi Public Service Com., 241 Miss. 762, 133 So. 2d 521, 1961 Miss. LEXIS 397 (Miss. 1961).

§ 77-3-89. Payment of expenses; audit of books and accounts; Public Utilities Staff Regulation Fund; funding of agency expenses; deposit of monies into State General Fund.

It shall be the duty of the State Auditor to advise the commission of the amount of money on hand in the “Public Service Commission Regulation Fund” from time to time. All expenses of the commission authorized by this article, or any other act of the Legislature, shall be paid by the State Treasurer upon warrants issued by the State Fiscal Officer, which warrants shall be issued upon requisition signed by the chairman of the commission and countersigned by one (1) of the commissioners. Said requisition shall show upon its face the purpose for which the payment is being made by reference to the minute book in which such payment was authorized. It shall be unlawful for any person to withdraw any money from said fund other than by requisition issued as herein provided. A record of all requisitions issued by the commission showing to whom, for what purpose, and date issued, shall be placed upon the minute books of the commission and shall become a part of the official record of the commission.

The books and accounts of the commission shall be audited at the end of each fiscal year, and at any other time deemed necessary, by the State Auditor and a copy of such audits shall be furnished to the Governor and the commission. The State Auditor may prescribe such further accounting procedure as he deems necessary for the withdrawal of funds by the commission from said special fund. All requisitions drawn in compliance with this article shall be honored by the State Auditor and the funds disbursed in accordance therewith. The commission shall file a report at each regular session of the Legislature showing the expenditure of all funds by the commission.

The “Public Utilities Staff Regulation Fund” shall be administered in accordance with Section 77-2-19.

From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Codes, 1942, § 7716-36; Laws, 1956, ch. 372, § 36; Laws, 1966, ch. 626, § 1; Laws, 1968, ch. 505, § 1; Laws, 1970, ch. 427, § 1; Laws, 1987, ch. 343, § 7; Laws, 1991, ch. 525, § 6; Laws, 2016, ch. 459, § 54, eff from and after July 1, 2016.

Editor’s Notes —

Section7-7-2, as added by Laws of 1984, chapter 488, § 90, and amended by Laws of 1985, chapter 455, § 14, Laws of 1986, chapter 499, § 1, provided, at subsection (2) therein, that the words “state auditor of public accounts,” “state auditor”, and “auditor” appearing in the laws of the state in connection with the performance of auditor’s functions transferred to the state fiscal management board, shall be the state fiscal management board, and, more particularly, such words or terms shall mean the state fiscal management board whenever they appear. Thereafter, Laws of 1989, chapter 532, § 2, amended §7-7-2 to provide that the words “State Auditor of Public Accounts,” “State Auditor” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer, and, more particularly, such words or terms shall mean the State Fiscal Officer whenever they appear. Subsequently, Laws of 1989, ch. 544, § 17, effective July 1, 1989, and codified as §27-104-6, provides that wherever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016’ ”

Amendment Notes —

The 2016 amendment added the last two paragraphs.

Cross References —

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Public Service Commission Regulation Fund, see §77-1-6.

RESEARCH REFERENCES

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-90. Annual reports of commission.

It shall be the duty of the commission to make and publish annual reports to the governor and the legislature as provided in Section 27-101-1, et seq., of commission activities, including copies of its general orders and regulations, comparative statistical data on the operation of the various public utilities in the state, comparison of rates in Mississippi with rates elsewhere, a detailed report of its investigative division, a detailed report of the public utilities staff, a review of significant developments in the fields of utility law, economics and planning, a report of pending matters before the commission and a digest of the principal decisions of the commission and the Mississippi courts affecting public utilities.

HISTORY: Laws, 1983, ch. 467, § 31, eff from and after passage (approved April 6, 1983).

RESEARCH REFERENCES

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-91. Definitions applicable to §§ 77-3-91 through 77-3-95.

The following terms when used in Sections 77-3-91 through 77-3-95 shall have the following meaning:

“Utility” means an entity as defined in Section 77-3-3(d)(i), Mississippi Code of 1972, and whose rates for retail electric service are subject to regulation in this state.

“Commission” means the Mississippi Public Service Commission.

“Return” means before-tax return on common equity capital of the utility.

“Non-utility generator” means an entity selling electric capacity or energy at wholesale and which is not itself a utility as defined in paragraph (a) of this section. Non-utility generator shall not include any entity that is making the sale to the purchasing utility pursuant to a holding company system pooling agreement or a wholesale power sales agreement between or among affiliates where the allocation of power is mandated by the Federal Energy Regulatory Commission.

“Non-associated source” means an entity which is not an affiliate or a subsidiary of the utility.

“Capacity” means that portion of a wholesale purchase which represents the availability of the generating unit to produce the energy to be transmitted to the purchasing utility.

“Energy” means the electricity, as opposed to the availability, received by the purchasing utility pursuant to the sale.

HISTORY: Laws, 1994, ch. 316, § 1, eff from and after passage (approved March 10, 1994).

§ 77-3-93. Cost of purchasing electricity from non-utility generator for period in excess of 30 days included as expense item for purpose of calculating rates.

  1. Whenever a utility purchases at wholesale from a non-utility generator or some non-associated source all or a portion of its electric capacity and/or energy requirements for a period in excess of thirty (30) days, such utility shall be entitled to include as expense items in its revenue requirements, for the purpose of the calculation of its rates for retail service, the cost of such capacity and energy so purchased, and in addition to such cost, an amount representing a return on the capacity purchased over the period of the test year which is being used to calculate the revenue requirements. This amount shall be calculated using the return allowed by the commission as provided in Section 77-3-95.
  2. Nothing in Sections 77-3-91 through 77-3-95 shall be interpreted to allow a return on the energy purchased by a utility pursuant to its obligation to purchase energy under the federal Public Utilities Regulatory Policy Act of 1978.

HISTORY: Laws, 1994, ch. 316, § 2, eff from and after passage (approved March 10, 1994).

Cross References —

Definitions applicable to this section, see §77-3-91.

Federal Aspects—

Public Utility Regulatory Policy Act of 1978, see 15 USCS §§ 3201 et seq., 16 USCS §§ 824 et seq., and 42 USCS §§ 6801 et seq.

RESEARCH REFERENCES

CJS.

29 C.J.S., Electricity §§ 102, 103.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-95. Utilities to report to public utility staff and public service commission purchases of electricity from non-utility generator for period in excess of 30 days; public comment on report; hearings.

  1. Before a utility may receive the return on the cost of such capacity purchase, the utility shall report the purchase to the Public Utilities Staff and the Public Service Commission. The utility shall also send notice of the purchase to persons who have requested same and are on the list maintained for that purpose by the Secretary of the Public Service Commission. The Public Utilities Staff shall investigate the purchase to determine:
    1. Whether the purchase is in the best interest of the utility and of the retail customers of the utility;
    2. Whether the portion of the purchase designated as capacity or energy requirements, or both, is appropriate; and
    3. Whether the return filed by the utility in the report of purchase is just and reasonable to the utility and to the retail customers of the utility.
  2. Any third person may comment as deemed appropriate on the report, but if any third person desires a hearing, a written petition must be filed along with all supporting documentation, including all proposed testimony and exhibits supporting the contention that a hearing is needed and supporting the issues that should be considered. These issues may include any of the matters set forth in this section. The Public Utilities Staff shall fully review the information contained in the utility’s report and the material submitted by the third party and shall report in writing to the commission.
  3. If upon recommendation of the Public Utilities Staff or at the request of the third party petitioner, or on its own initiative, the commission determines that a hearing should be held, then the commission will set a time for a hearing, determine the issues to be heard and set a schedule for such preliminary matters as it deems necessary for such hearing. If the commission determines that a hearing is not necessary on any or all of the issues set forth in this section, it may determine such issue or issues based upon the record before it and file its final order thereon which shall then be subject to appeal as provided in Sections 77-3-67 through 77-3-73.

HISTORY: Laws, 1994, ch. 316, § 3, eff from and after passage (approved March 10, 1994).

Cross References —

Definitions applicable to this section, see §77-3-91.

RESEARCH REFERENCES

CJS.

29 C.J.S., Electricity §§ 102, 103.

§ 77-3-97. Water conservation; submetering in multiunit dwellings.

  1. The Legislature finds that the conservation of water resources is vitally important to the future of our state, and that in order to enhance the conservation of water resources, it is necessary to grant specific authority for the provision of submetering of water and wastewater disposal service.
  2. As used in this section, the following words and phrases have the meanings ascribed in this subsection, unless the context clearly indicates otherwise:
    1. “Apartment house” means one or more buildings containing four (4) or more dwelling units that are occupied primarily for nontransient use, including a residential condominium whether rented or owner occupied, and if a dwelling unit is rented, having rental paid at intervals of one (1) month or longer.
    2. “Dwelling unit” means one or more rooms in an apartment house or condominium, suitable for occupancy as a residence, and containing kitchen and bathroom facilities, or a manufactured home in a manufactured home community.
    3. “Customer” means the individual, firm or corporation in whose name a master meter has been connected by a public utility.
    4. “Owner” means the legal titleholder of an apartment house or manufactured home community and any individual, firm or corporation that purports to be the landlord of tenants in the apartment house or manufactured home community.
    5. “Tenant” means a person who is entitled to occupy a dwelling unit to the exclusion of others and who is obligated to pay for the occupancy under a written or oral rental agreement.
    6. “Manufactured home community” means a property on which spaces are rented for the occupancy of: (i) manufactured homes for nontransient residential use and for which rental is paid at intervals of one (1) month or longer; or (ii) recreational vehicles for nontransient residential use for a time period of three (3) months or longer.
    7. “Submetering” means the use of a metering device by a customer who receives water and wastewater service from a public utility, which metering device measures water supplied to a tenant for the purpose of the customer’s charging the tenant of a dwelling unit separately for water and wastewater usage.
    1. An apartment house owner, manufactured home community owner or condominium manager may provide for submetering of each dwelling unit or rental unit for the measurement of the quantity of water consumed by the occupants of the unit. If submetering is utilized, tenants may be charged separately for water and wastewater services on a pass through allocated basis for charges incurred by the customer. The charges for a tenant may not exceed the tenant’s pro rata share of all water and wastewater services used by all of the tenants in that apartment house, manufactured home community or condominium.
    2. Any apartment house owner, manufactured home community owner or condominium manager utilizing submetering pursuant to this section shall disclose the submetering to each tenant and obtain from the tenant an acknowledgment of the submetering in a written document.
    3. Submeters installed pursuant to this section must meet the American Water Works Association standards for accuracy.
    4. In rendering charges to tenants pursuant to this section, the customer shall provide:
      1. Beginning and ending meter reads;
      2. A statement that the bill is not from the public utility; and
      3. A telephone number for tenant inquiries on the bill.
    5. Water and wastewater services utilized by the tenant may not be disconnected for nonpayment of submetered bills.

HISTORY: Laws, 2002, ch. 513, § 1, eff from and after July 1, 2002.

Cross References —

Conservation of water and water resources, generally, see §§51-3-1 et seq.

Article 2. Alternate Method of Cost Recovery on Certain Base Load Generation.

General Provisions

§ 77-3-101. Legislative determinations and declarations of policy.

The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

To promote and foster the prudent, timely expansion and construction of, and long-term availability of, adequate and appropriate levels of electric generation by electric public utilities, as described in Section 77-3-3(d) (i), with diversity as to the means of such generation and as to the sources of fuel for such generation, including nuclear fuel, coal and other reliable fuel sources;

That such availability is essential to the orderly and effective operation of a reliable electric system in this state and will be vital to economic stability and growth within the State of Mississippi and to the public interest, and that the generation and related operations of electric public utilities are affected with the public interest;

That new base load electric generating technologies are and will continue to be important in the planning and development of public utility electric generation, and that the State should take advantage of advances in nuclear, coal and other technologies, including technologies that reduce or minimize, or that facilitate the future reduction or minimization of, regulated air emissions;

To take advantage of financial and other incentives afforded and provided by the federal Energy Policy Act of 2005 for the construction of certain electric generating facilities and any federal or state legislative or other incentives that may from time to time become available and to require that all such incentives be utilized for the benefit of such generating facilities;

To promote and foster economic development; and

To promote and foster the State of Mississippi’s energy independence by encouraging the development and utilization of fuel sources derived from the State of Mississippi’s natural resources.

HISTORY: Laws, 2008, ch. 531, § 1, eff from and after passage (approved May 9, 2008).

Federal Aspects—

The Energy Policy Act of 2005, Act Aug. 8, 2005, P.L. 109-58, 119 Stat. 594, appears in part as 42 USCS §§ 15801 et seq.

§ 77-3-103. Definitions.

As used in this article:

The term “generating facility” means a new electric public utility base load generating facility located in the State of Mississippi having, or potentially having, base load-serving characteristics and incorporating such generating technologies or fuel sources as may be approved by the commission, including equipment or facilities relating thereto such as related, connected or necessary electric transmission facilities, and:

Having, or planned or projected to have, an aggregate design capability, based upon manufacturer name plate rating or other appropriate rating as the commission may approve, of generating three hundred (300) megawatts or greater of electric power for a coal gasification or clean coal facility and eight hundred (800) megawatts or greater of electric power for a nuclear facility;

That, in whole or in part, is owned or controlled, or is planned or projected to be owned or controlled, by, or under common control with, an electric public utility certificated to operate as such by the commission with a certificated electric service area located within the State of Mississippi;

That is intended, in whole or in part, to serve retail customers of an electric public utility in Mississippi;

That utilizes technology to reduce or minimize, or to facilitate the future implementation of processes for the reduction or minimization of regulated air emissions; and

That may, but shall not be required to, be located at an existing generating facility site.

The term “pre-construction” means any and all activities or costs relating to planning, evaluation, screening, licensing, siting, design, development or other similar activities prior to the construction of a generating facility.

HISTORY: Laws, 2008, ch. 531, § 2, eff from and after passage (approved May 9, 2008).

§ 77-3-105. Inclusion of certain expenditures in electric public utility rate base and rates; accrual of reasonable rate of return; cancellation or abandonment of construction; prudence reviews; appeal of final order of commission.

    1. The commission is fully empowered and authorized to include in an electric public utility’s rate base and rates, as used and useful components of furnishing electric service, all expenditures determined to be prudently-incurred pre-construction, construction, operating and related costs that the utility incurs in connection with a generating facility (including but not limited to all such costs contained in the utility’s “Construction Work in Progress” or “CWIP” accounts), whether or not the construction of any generating facility is ever commenced or completed, or the generating facility is placed into commercial operation. However, all costs incurred before May 9, 2008, may be reflected in rates only upon an order of the Public Service Commission after a finding of prudency.
    2. The commission is further empowered and authorized to allow a public utility to accrue a just and reasonable rate of return to be determined by the commission on the unrecovered balance of any pre-construction or construction costs which shall include all costs incurred before May 9, 2008, and such costs may be reflected in rates only upon an order of the Public Service Commission after a finding of prudency.
    3. The commission may order that pre-construction, construction, operating and related costs be reflected in rates either as a part of base rates or through the operation of a rider schedule or other similar rate mechanism, or through a combination thereof, as the commission deems appropriate and in the public interest, and such costs incurred before May 9, 2008, may be reflected in rates only upon an order of the Public Service Commission after a finding of prudency.
    4. Notwithstanding other provisions of this section, recovery of any construction costs incurred in excess of the amount estimated by the public utility in a certificate proceeding will be addressed by the commission in a proceeding after the generating facility is completed and commences commercial operation, upon petition by the public utility.
    5. Once the commission grants a facilities certificate, no public utility shall abandon or cancel construction of a generating facility without approval from the commission based on a finding that the construction is no longer in the public interest. Notwithstanding any provisions of this article to the contrary, if the generating facility is abandoned or cancelled without the approval of the commission, the commission shall determine whether the public interest will be served to allow (i) the recovery of all or part of the prudently incurred pre-construction, construction and related costs in connection with the generating facility and related facilities, (ii) the recovery of a return on the unrecovered balance of the utility’s prudently-incurred costs at a just and reasonable rate of return to be determined by the commission, or (iii) the implementation of credits, refunds or rebates to ratepayers to defray costs incurred for the generating facility.
    1. The commission is authorized to conduct prudence reviews on a periodic or ongoing basis with regard to any pre-construction, construction, operating and related costs associated with a generating facility, to hold hearings thereon, and to reflect the outcome of such commission reviews, including commission prudence determinations, in the public utility’s rates. The commission is authorized to make and issue such prudence determinations as frequently as each calendar quarter. The commission is authorized to set a procedural schedule for such commission determinations. Any such prudence determinations shall be binding in all future regulatory proceedings affecting such generating facility, unless the generating facility is imprudently abandoned or cancelled.
    2. The Executive Director of the Public Utilities Staff and the commission may enter into professional services contracts with one or more consultants to audit pre-construction, construction and related costs incurred for a generating facility and to make such reports and provide testimony thereon as may be required by the executive director or the commission, as applicable. Such contracts shall be considered to be for auditor or utility rate expert services under Section 25-9-120. Costs associated with such professional service contracts shall not exceed Three Hundred Fifty Thousand Dollars ($350,000.00) for work performed on any given nuclear generating facility and Two Hundred Thousand Dollars ($200,000.00) on any given non-nuclear generating facility, in any twelve-month period; provided, however, the Public Utilities Staff and the commission may by rule, after notice and hearing, modify these amounts. The consultants shall submit periodically to the executive director or the commission, as applicable, for approval of payment, itemized bills detailing the work performed. The executive director or the chairman of the commission, as applicable, shall requisition the audited public utility to make the requisite payments to such consultants. Payments by the audited public utility shall be considered as pre-construction, construction, operating or related costs and recoverable pursuant to paragraph (c) of subsection (1).
    3. The provisions of Sections 77-3-37(7) (b) and 77-3-39(10) and (15) shall not apply to any proceeding for the change in rates by the commission in connection with a generating facility.
  1. Any party aggrieved by any final order of the commission relating to any generating facility shall have a right of direct appeal to the Mississippi Supreme Court. The procedures set out in Section 77-3-72 for direct appeal, including those provisions relating to periods of time in which filings are to be made, shall apply to any commission final order promulgated, in whole or in part, pursuant to this article.

HISTORY: Laws, 2008, ch. 531, § 3, eff from and after passage (approved May 9, 2008).

Cross References —

Appealed commission matters to take preference in all courts, see §77-3-73.

Burden of proof on party seeking to vacate commission order, see §77-3-77.

JUDICIAL DECISIONS

1. Prudency hearing.

2. Construction work in progress.

3. Due process.

1. Prudency hearing.

Public Service Commission erred in granting rate increases for a power company because it failed to comply with the Base Load Act and exceeded its authority granted by the Act; by stipulation, the Commission improperly deferred prudency hearings, which were a prerequisite to granting an increase in rates, and in the absence of prudency hearings, a rate could not be arbitrarily declared as fair, just, and reasonable. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

2. Construction work in progress.

There was no authorization to impose “mirror construction work in progress” in the Base Load Act; the ratepayers’ money was placed into a regulatory liability account controlled by the Public Service Commission, and thus, the money exacted was not being used to pay for funds used during construction as expenses were incurred but was confiscated through governmental decree by a rate increase imposed by a privately owned corporation that could not spend it. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Public Service Commission does not have unbridled authority to adopt recovery mechanisms which are not authorized by existing law; while the Base Load Act permits the Commission to include construction work in progress (CWIP) in the utility’s rate base and rates, the Act does not authorize the Commission to adopt an entirely new mechanism, i.e., “mirror CWIP,” a concept not previously recognized in Mississippi rate-making practices. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

3. Due process.

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

By approving increased rates based on “mirror construction work in progress” recovery, the Public Service Commission deprived the ratepayers of their money, and the increased rates were not being used to pay for funds during construction as provided by the Base Load Act but were confiscated through governmental decree by rate increase imposed by a privately owned corporation that could not spend it; the taking of private funds is a transfer of property and results in the deprivation of property. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

§ 77-3-106. Rate mitigation plan; proposal, scope, approval, implementation.

  1. As used in this section:
    1. The term “rate mitigation plan” means a rate plan designed to mitigate the initial rate impacts of collecting the revenue requirements associated with the inclusion of a newly constructed generating facility in rate base and rates by establishing a plan for collecting or phasing in the revenue requirements over a period that is not to exceed ten (10) years.
    2. The term “generating facility” shall have the same meaning as defined in Section 77-3-103.
  2. A rate mitigation plan may be approved by the commission in connection with a generating facility that is owned, in whole or in part, by an electric public utility whose rates are subject to the jurisdiction of the commission in accordance with the procedures contained in this section. The rate mitigation plan:
    1. Shall be proposed by an electric public utility through a separate petition or by an electric public utility in connection with any other rate proceeding pending before the commission related to a generating facility;
    2. Shall be implemented through rate schedules, rate riders, methods, formulas or other mechanisms, which have previously been proposed by the electric public utility or, if amended, are subsequently agreed to by the electric public utility;
    3. Shall not be requested or filed earlier than twelve (12) months prior to the beginning of the calendar year in which a generating facility is scheduled to be placed into commercial operation; and
    4. Shall be limited in scope to only the investment, expenses, revenues and rates of return associated with the construction, ownership and operation of a generating facility and all related assets, facilities and equipment incurred or to be incurred through the end of the rate mitigation period. The commission’s review of a rate mitigation plan shall be conducted and all existing and applicable statutes and rules related thereto shall be enforced in a manner consistent with the limitations prescribed in this subsection (2)(d).
  3. Subject to the limitation contained in subsection (2)(d) above any filing by an electric public utility requesting a rate mitigation plan shall:
    1. Present a rate mitigation plan by providing the information required in Section 77-3-37(2)(e), (f) and (g) for each year of the proposed rate mitigation period; and
    2. Present a conventional rate recovery proposal without a rate mitigation plan by complying with Section 77-3-37(2).
  4. Subject to the limitation contained in subsection (2)(d) of this section, the commission’s consideration of any rate mitigation plan shall be governed by all of the provisions of Article 1 and 2 of this Chapter 3, Title 77, except Sections 77-3-37(4) and 77-3-105(2)(c) and any rules promulgated and related thereto.
  5. In approving any rate mitigation plan, the commission:
    1. Shall include a finding establishing the initially approved rate base;
    2. Shall consider and evaluate the revenues, costs, rate base and returns applicable over the entire rate mitigation period; and
    3. Shall, for the rate mitigation period, allow recovery of a return, not to exceed the weighted cost of capital rate of return approved in the rate mitigation plan, on the balance of any unrecovered or deferred amounts accrued pursuant to the rate mitigation plan for the account of either the electric public utility or the electric public utility’s retail customers during the rate mitigation period.
  6. Following the implementation of any rate mitigation approved by the commission, revenue adjustments made during and in accordance with the rate mitigation plan shall not constitute changes in rates pursuant to Sections 77-3-37 or 77-3-39. The revenues, investment, expenses and rate of return applicable to a commission-approved rate mitigation plan shall, during the rate mitigation period, be excluded from the calculation of rates for the subject electric public utility in any other rate proceeding before the commission.
  7. The authority granted to the commission herein to implement a rate mitigation plan shall not be deemed to be in conflict of the requirements of Sections 77-3-33 and 77-3-43.
  8. Notwithstanding Section 77-3-41, Section 77-3-61, or any other provision of Title 77, any order implementing a rate mitigation plan under this article shall be irrevocable once there is a final order for which the time for all appeals has expired. A final order implementing a rate mitigation plan shall, during the rate mitigation period, be binding in all future regulatory proceedings affecting such generating facility or rates or charges associated with such generating facility. Neither the commission nor any other governmental authority established by Mississippi law may amend, modify, or terminate the rate mitigation plan by any subsequent action or reduce, impair, postpone, terminate or otherwise adjust the charges established by the rate mitigation plan order until after the rate mitigation period has elapsed and such rate mitigation plan may then only be revised in accordance with Article 1 of this Chapter 3, Title 77. Notwithstanding anything contained herein to the contrary, nothing in this section shall diminish, or be construed to diminish, the power and authority of the commission in the event the generating facility is abandoned, cancelled or otherwise fails to become used and useful in the provision of electric service.
  9. The rates and charges in effect at the end of the rate mitigation period shall remain in effect after the rate mitigation plan unless and until modified in accordance with Article 1 of this Chapter 3, Title 77.

HISTORY: Laws, 2013, ch. 306, § 1, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 306, § 2, provides:

“SECTION 2. The provisions of this act shall be deemed to be full and complete authority for the exercise of the powers therein granted.”

§ 77-3-107. Rules and regulations; preference for ownership of generating facilities by certain electric public utilities.

The commission is fully empowered and authorized to promulgate rules and regulations as may be necessary to effectuate the provisions of this article, which may include a preference for ownership, in whole or in part, of a generating facility by an investor-owned electric public utility operating in the State of Mississippi or by an electric public utility owning and operating generation and transmission facilities in the State of Mississippi that, prior to January 1, 2008, was organized under Chapter 184, Laws of 1936 [See Editor’s Note below], and was comprised of corporate members each of which is an electric power association under Chapter 184.

HISTORY: Laws, 2008, ch. 531, § 4, eff from and after passage (approved May 9, 2008).

Editor’s Notes —

Chapter 184, Laws of 1936, is codified within Article 5 of Chapter 5 of Title 77. For a complete list of Code sections affected by Chapter 184, Laws of 1936, see Statutory Tables Volume, Table B, Allocation of Acts, 1936.

§ 77-3-109. Legislative Advisory Board on Alternate Method of Cost Recovery on Base Load Generation; purpose; composition.

There is hereby created the Legislative Advisory Board on Alternate Method of Cost Recovery on Base Load Generation for the purpose of advising the Public Service Commission in the performance of its duties and to require the commission to make a written report to the advisory board every six (6) months regarding any activities pertaining to base load generation. The advisory board shall be composed of the following:

The Chairman and Vice Chairman of the House Public Utilities Committee, or their designees;

The Chairman and Vice Chairman of the Senate Public Utilities Committee, or their designees;

The Chairman of the House of Representatives Appropriations Committee, or his designee;

The Chairman of the Senate Appropriations Committee, or his designee;

The Chairman of the House of Representatives Ways and Means Committee, or his designee; and

The Chairman of the Senate Finance Committee, or his designee.

Members of the advisory board shall receive per diem and expenses which shall be paid from the contingent expense funds of their respective houses in the same amounts as provided for committee meetings when the Legislature is not in session; however, no per diem and expenses for attending meetings of the advisory board shall be paid to legislative members while the Legislature is in session.

HISTORY: Laws, 2008, ch. 531, § 5, eff from and after passage (approved May 9, 2008).

Mississippi Public Utility Rate Mitigation and Reduction Act

§ 77-3-111. Definitions.

As used in Sections 77-3-111 through 77-3-127:

“Assignee” means any person or legal entity to which an interest in security property is sold, assigned, transferred or conveyed (other than as security) and any successor to or subsequent assignee of such a person or legal entity.

“Bondholder” means any holder or owner of a rate reduction bond.

“Commission” means the Mississippi Public Service Commission.

“Financing costs” means:

Any payment made on or before issuance of rate reduction bonds and any amount required to fund any reserves or other accounts established pursuant to the terms of any financing order, indenture or other financing documents pertaining to rate reduction bonds;

Principal, interest and acquisition, defeasance or redemption premiums and all other amounts that are payable on rate reduction bonds;

Any amount required to be paid under any financing document;

Any amount required to fund or replenish any reserves or other accounts established pursuant to the terms of any financing order, indenture, financing document or other financing document pertaining to rate reduction bonds;

Any taxes, fees, franchise, transfer, profits, license, excise, severance, customs, duties, assessments or other charges imposed by any governmental or taxing authority on the rate reduction bond charge revenue whether paid, payable or accrued;

Any other cost related to issuing, supporting, repaying, servicing, retiring, refinancing or refunding rate reduction bonds and all other required amounts payable in connection therewith, including, but not limited to, servicing fees and expenses, accounting and auditing fees and expenses, legal fees and expenses, consulting fees and expenses, security registration fees, trustee fees and expenses, insurance premiums, administrative fees, placement and underwriting fees, rating agency fees, stock exchange listing fees, compliance fees, costs to create or amend financing documents, and costs to obtain waivers, consents or approvals;

Any costs and expenses associated with the creation, operation, management and winding up of any special purpose entity created by the electric public utility in connection with the issuance of rate reduction bonds; and

Any other costs deemed appropriate by the commission.

“Financing document” or “financing documents” means any bond, insurance policy, letter of credit, reserve account, surety bond, swap agreement, hedging arrangement, liquidity or credit support arrangement, trust indenture, security agreement, pledge agreement, financing agreement, transfer or assignment document, or other document or financial arrangement entered into in connection with the issuance of rate reduction bonds.

“Financing party” shall include any and all of the following:

Any trustee, collateral agent, or other person acting on behalf or for the benefit of any bondholder under any financing document; or

Any party to a financing document, the rights and obligations of which relate to or depend upon the existence of security property, the enforcement and priority of a security interest in security property, the timely collection and payment of rate reduction bond charge revenues, or a combination of any of the foregoing.

“Financing statement” shall have the same meaning as that provided in Article 9 of the Uniform Commercial Code, as same may be amended from time to time.

“Issuing entity” means any person or legal entity, including, but not limited to, any corporation, limited liability company, partnership, limited partnership, public authority or trust, that issues rate reduction bonds pursuant to a financing order issued pursuant to Sections 77-3-111 through 77-3-127.

“Non-bypassable” means, with respect to rate reduction bond charges, that, so long as rate reduction bonds are outstanding and the related financing costs have not been recovered in full, such charges cannot be avoided by any retail customer of the electric public utility, including special contract customers, or any other person located within the electric public utility’s certificated area that is directly or indirectly connected to electric facilities of the electric public utility or its successors or assignees and receiving retail electric service pursuant to a commission approved rate, even if such retail customer or other person elects to purchase electricity from an alternative electricity supplier following a fundamental change in regulation of electric public utilities in this state.

“Qualifying facility” shall mean a generating facility as the term is defined in Section 77-3-103:

That uses coal gasification or clean coal technology with a coal fuel stock derived, in whole or in part, from the State of Mississippi; and

That is placed into commercial operation on or before December 31, 2020.

“Qualifying facility cost” means any cost incurred or expected to be incurred by an electric public utility related to a qualifying facility, including, but not limited to, pre-construction costs, construction costs, capitalized cost relating to a regulatory asset, any amounts accrued as allowance for funds used during construction and construction work in progress.

“Rate reduction bonds” or “bonds” means those debentures, notes, certificates of participation, certificates of beneficial interest, certificates of ownership or other evidences of indebtedness or ownership that are issued by an issuing entity under a financing order, the proceeds of which are used directly or indirectly to recover, finance or refinance generation facility costs and financing costs, and that are secured by or payable from security property and which shall have a maturity date of no more than twenty (20) years after the date of issuance.

“Rate reduction bond charge” means the nonbypassable tariff, rate, charge, formula or mechanism established in a financing order to fully recover financing costs, which is to be imposed on, and as a part of, all retail customer bills, including special contract customer bills, and collected by an electric public utility or its successors or assignees, or a collection agent, separate and apart from the base rates of the electric public utility.

“Rate reduction bond charge revenue” means any and all revenues, receipts, collections, claims, rights to payments, payments, monies or other proceeds arising from the security property and collected by an electric public utility or other collection agent that is attributable to a rate reduction bond charge.

“Secured party” means a financing party to which an electric public utility, issuing entity or their respective successors or assignees mortgages, negotiates, hypothecates, grants, pledges, or creates a security interest or lien on all or any portion of the rights in or to the security property.

“Security property” means all rights and interests of an electric public utility established upon the issuance of a financing order under Sections 77-3-111 through 77-3-127, including, but not limited to:

The right to bill and to obtain periodic true-up adjustments to the rate reduction bond charge as provided in the financing order and Sections 77-3-111 through 77-3-127;

The right to receive rate reduction bond charge revenue, as periodically adjusted, imposed, billed, collected and transferred; and

All revenues, receipts, collections, claims, rights to payments, payments, money or other proceeds arising from the rights and interests described in subparagraphs (i) and (ii) of this subsection, regardless of whether such collections, claims, rights to payment, payments, money or proceeds are imposed, billed, received, collected, or maintained together with or commingled with other revenues, receipts, collections, rights to payment, payments, money or other proceeds of an electric public utility or collection agent.

“Uniform Commercial Code” shall have the same meaning as provided in Title 75 of the Mississippi Code of 1972.

HISTORY: Laws, 2013, ch. 305, § 3, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-113. Contents of petition.

  1. Subject to the agreement by the affected electric public utility, the commission shall cause to be financed, consistent with the procedures set forth in Sections 77-3-111 through 77-3-127, all qualifying facility costs found to be prudent by the commission that are incurred over the estimate of such costs presented by the electric public utility in the certificate proceeding for the qualifying facility, up to a maximum of One Billion Dollars ($1,000,000,000.00). To accomplish the goals contained herein, the commission shall enter a financing order authorizing the issuance of rate reduction bonds by an electric public utility and to make such other findings and determinations as are provided for in Sections 77-3-111 through 77-3-127. The commission shall utilize a competitive Requests for Proposals process to select any bond attorney or counsel and may not accept any proposal in excess of Five Hundred Thousand Dollars ($500,000.00).
  2. Upon request by the commission in accordance with the requirements of subsection (1) of this section, the electric public utility owning a qualifying facility, in whole or in part, and whose rates are subject to the jurisdiction of the commission, shall submit a petition presenting the following information:
    1. Describe the qualifying facility and related qualifying facility costs in rate base or to be included in rate base;
    2. Indicate the total amount of qualifying facility cost required to be financed by the electric public utility using proceeds from rate reduction bonds;
    3. Estimate the financing costs related to the rate reduction bonds;
    4. Describe and estimate the rate reduction bond charge necessary to recover the financing costs as they become due and the proposed period for recovery of such costs;
    5. Estimate the projected cost savings to customers based upon then current market conditions resulting from financing the qualifying facility cost with rate reduction bonds as opposed to including the amount of such cost in rate base and recovering the revenue requirements associated with such cost over the depreciable life of the qualifying facility;
    6. File with the commission direct testimony supporting the application; and
    7. Timely provide the commission or the public utilities staff, as applicable, such additional information and documentation as either may reasonably request.

HISTORY: Laws, 2013, ch. 305, § 4, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-115. Petition procedure.

  1. Proceedings on a petition submitted pursuant to Section 77-3-113 shall be disposed of in accordance with the provisions of Section 77-3-47 and applicable commission procedural rules, except that the provisions of this Section 77-3-115, to the extent applicable, shall control.
  2. Within seven (7) days after the filing of a petition, the commission shall issue a scheduling order, which sets a hearing date and provides for a decision on the issuance of a financing order not more than one hundred twenty (120) days after the date the petition is filed.
  3. When deemed necessary by the Executive Director of the Public Utilities Staff, the staff shall conduct an independent investigation as to the electric public utility’s petition for a financing order subject to and within the time limitations prescribed in Sections 77-3-111 through 77-3-127.
  4. Not more than one hundred twenty (120) days after the date the petition is filed, the commission shall issue a financing order or an order denying the petition.
  5. Any party to the commission proceeding may petition the commission for reconsideration of an order granting or denying a petition for the issuance of a financing order not more than seven (7) days after the date the order is issued. The commission shall rule on the petition for reconsideration not more than fourteen (14) days after the filing of such petition. A failure by the commission to act upon such petition for reconsideration within the specified time period shall be deemed a denial of the petition for reconsideration, and the order of the commission granting or denying a petition for the issuance of a financing order shall be deemed final.
  6. Any judicial review shall be as provided in Section 77-3-72; provided, however, that any person, other than the electric public utility that is the subject of the financing order, seeking to appeal a financing order issued pursuant to Sections 77-3-111 through 77-3-127, or any prudence determination related thereto, shall not perfect its appeal unless and until a bond of sufficient amount to protect the customer savings projected to be realized through the issuance of rate reduction bonds as determined by the commission in the financing order pursuant to Section 77-3-117(b) is filed with the commission prior to expiration of time provided under Section 77-3-72 for the filing of a notice of appeal. If an appeal of an order granting or denying a petition for the issuance of a financing order is perfected pursuant to the procedure provided above, the electric public utility shall be authorized to establish a regulatory asset for the purpose of deferring a return on the qualifying facility cost intended to be financed by the rte reduction bond proceeds equal to the utility’s weighted average cost of capital until such time as there is a final financing order for which the time for all appeals has expired. A financing order shall provide that any and all deferred return of the electric public utility during the pendency of an appeal may be financed as qualifying costs pursuant to the provisions of Sections 77-3-111 through 77-3-127.
  7. The filing of a petition by an electric public utility, the issuance of a financing order, the issuance of rate reduction bonds and the implementation or adjustment of a rate reduction bond charge under Sections 77-3-111 through 77-3-127 shall not constitute a change in rates pursuant to Section 77-3-37 or 77-3-39.

HISTORY: Laws, 2013, ch. 305, § 5, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-117. Commission’s responsibility in issuing a finance order; establishment of a special purpose entity to act as issuing entity.

  1. In a financing order issued on behalf of an electric public utility, the commission shall:
    1. Specify the maximum amount of qualifying facility cost to be financed through the issuance of rate reduction bonds.
    2. Determine that the financing method proposed pursuant to Sections 77-3-111 through 77-3-127 is reasonably expected to result in lower overall costs to customers associated with the qualifying facility compared to including the qualifying facility cost amount specified in paragraph (a) of this subsection (1) in rate base and recovering the revenue requirements over the depreciable life of the qualifying facility.
    3. Provide that, until the rate reduction bonds are paid in full and all related financing costs are fully recovered, the imposition and collection of the rate reduction bond charge shall be nonbypassable as such term is defined in Sections 77-3-111 through 77-3-127.
    4. Establish and employ a formula-based true-up mechanism for making expeditious periodic adjustments in the rate reduction bond charge that customers are required to pay under the financing order and for making any adjustments to the rate reduction bond charge that are necessary to correct for any overcollection or undercollection of the rate reduction bond charge or to otherwise ensure the timely payment of financing costs.
    5. Specify the security property to be created in favor of the electric public utility upon the issuance of a financing order to secure prompt payment of the rate reduction bonds and all associated financing costs.
    6. Specify, to the extent reasonably practicable, the terms and conditions of the rate reduction bonds, including, but not limited to, repayment schedules, expected interest rates and financing costs; provided, however, the commission shall afford the issuing entity flexibility in establishing the terms and conditions for the rate reduction bonds to accommodate changes in market conditions, including, but not limited to, repayment schedules, interest rates, financing costs, collateral requirements, required debt service and other reserves, and the ability of the issuing entity, at its option, to effect a series of issuances of rate reduction bonds and correlated assignments, sales, pledges or other transfers of security property.
    7. Provide that the rate reduction bond charge be allocated to the customer rate classes or rate schedules in the same manner that each such class or rate schedule is allocated its portion of the revenue requirements associated with the qualifying facility included in the electric public utilities rate base and rates.
    8. Provide that upon the issuance of rate reduction bonds, the electric public utility shall institute the resulting initial rate reduction bond charge in accordance with the financing order and such initial rate reduction bond charge shall be final and effective upon the issuance of such rate reduction bonds without further action of the commission.
    9. Include any other conditions that the commission considers appropriate and that are not otherwise inconsistent with Sections 77-3-111 through 77-3-127.
    10. Unless otherwise specified in the financing order, any rate reduction bond charge revenue remaining after all financing costs have been paid in full shall be credited to the retail customers of the electric public utility in a manner to be determined by the commission.
  2. Following issuance of a financing order, the electric public utility may establish a special purpose entity for the purpose of acting as the issuing entity and such issuing entity may issue rate reduction bonds as provided in the financing order. The electric public utility retains sole discretion to establish a special purpose entity and cause it to issue rate reduction bonds. An issuing entity established by an electric public utility pursuant to Sections 77-3-111 through 77-3-127 shall not constitute a public utility pursuant to Section 77-3-3.
  3. If an electric public utility subject to a financing order creates a special purpose entity for the purpose of acting as the issuing entity, rate reduction bonds shall not be considered a debt of the electric public utility for regulatory or ratemaking purposes; but, the electric public utility shall have only a duty to collect and remit to the issuing entity all rate reduction bond charge revenue with respect to the rate reduction bonds. Similarly, the special purpose entity or any other assignee of security property shall have no ownership interest in the qualifying facility or any related facilities, property and assets of the electric public utility whether fully or partially financed with proceeds from rate reduction bonds.
  4. A financing order shall remain in full effect and unabated notwithstanding the reorganization, bankruptcy, or other insolvency proceedings of the electric public utility or its successors or assigns. Subsequent to the issuance of rate reduction bonds authorized by a financing order, the financing order shall be irrevocable, and the commission may not:
    1. Amend, modify or terminate the financing order by any subsequent action; or
    2. Reduce, impair, postpone, terminate or otherwise adjust the rate reduction bond charge and security property approved and established in the financing order except as provided in Section 77-3-119.
  5. At the request of an electric public utility, the commission may commence a proceeding and issue a subsequent financing order that authorizes the refinancing or refunding of rate reduction bonds issued pursuant to the original financing order if the commission finds that the subsequent financing order satisfies all of the criteria specified in Sections 77-3-111 through 77-3-127. Effective on retirement of the rate reduction bonds and the issuance of new rate reduction bonds, the commission shall adjust the related rate reduction bond charge accordingly.

HISTORY: Laws, 2013, ch. 305, § 6, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-119. Filing of true-up report by issuing entity; review by commission.

  1. If the commission issues a financing order and rate reduction bonds are issued, the issuing entity shall, as frequently as quarterly but no less frequently than annually, file with the commission a true-up report requesting the commission to review the rate reduction bond charge established in the financing order and authorize the true-up adjustments described herein. A copy of such report shall promptly be served upon the electric public utility collecting the rate reduction bond charge. The report shall present the amount of any overcollection or undercollection of the rate reduction bond charge and shall include a schedule applying the approved true-up adjustment mechanism authorized in the financing order and the resulting amount of any true-up adjustment required to ensure the recovery of revenues sufficient to provide for the timely payment of all financing costs when due.
  2. The commission’s review of the true-up report shall be limited to a determination of the existence and amount of any mathematical errors in the report concerning the application of the approved true-up adjustment mechanism. Within thirty (30) days after receiving a true-up report pursuant to this section, the commission shall, if necessary, revise the rate reduction bond charge and notify the electric public utility of such revision, or, if no revision to the rate reduction bond charge is required, the commission shall so notify the electric public utility. A true-up report requesting to revise the rate reduction bond charge shall be deemed approved if the requested revision is neither approved nor denied by the commission within thirty (30) days after the request is submitted.
  3. Any true-up report requesting a true-up adjustment of a rate reduction bond charge shall not constitute a change in rates and shall not be subject to the requirements of Section 77-3-37 or 77-3-39.
  4. Upon the adjustment of a rate reduction bond charge pursuant to this section and notification to the electric public utility, the electric public utility shall promptly adjust the rate reduction bond charge to become effective the next practicable billing cycle.

HISTORY: Laws, 2013, ch. 305, § 7, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-121. Rate reduction bond charge as nonbypassable charge; legal remedy for failure of electric public utility to remit payment of rate reduction bond charge revenues.

  1. The rate reduction bond charge is a nonbypassable charge, and in the event an electric public utility subject to a financing order, as a result of insolvency, sale, a fundamental change in regulation of electric public utilities in this State, or other reason, ceases to serve customers within all or a portion of its certificated area, the commission shall have the obligation to ensure that the rate reduction bond charge is collected and transmitted to the issuing entity by any subsequent electric public utility providing service in such certificated area, or portion thereof, no longer being served by the electric public utility that originally petitioned for the financing order.
  2. If an electric public utility fails to remit any required payment of rate reduction bond charge revenues to an assignee, issuing entity, financing party or bondholder, as applicable, such assignee, issuing entity, financing party or bondholder shall have no legal remedy either at law or equity against the electric public utility or its assets, except as specifically provided below:
    1. A court, upon application by an assignee, issuing entity, financing party or bondholder, shall order the sequestration and payment of the rate reduction bond charge revenues for the benefit of any bondholder, assignee, financing party and/or issuing entity.
    2. The court’s order shall remain in full force and effect notwithstanding any bankruptcy, reorganization, or other insolvency proceedings with respect to the electric public utility or any affiliate thereof.

HISTORY: Laws, 2013, ch. 305, § 8, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the “Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-123. Security property.

  1. The security property shall constitute an existing, present and legally protectable property right that shall exist regardless of whether the rate reduction bond charges have been billed, have accrued, or have been collected, and notwithstanding any requirement that the value or amount of the property is dependent on the future provision of service to customers by the electric public utility.
  2. Security property authorized and established by a financing order shall continue to exist until the rate reduction bonds issued pursuant to such financing order are paid in full and all financing costs have been recovered in full.
  3. The security property authorized and established by a financing order and the interests of an assignee, bondholder, financing party or issuing entity in the security property are not subject to setoff, recoupment, counterclaim, surcharge, or defense by the electric public utility subject to the financing order or by any other person or entity, including as a result of the electric public utility’s failure to provide past, present, or future services, or in connection with the bankruptcy, reorganization, or other insolvency proceeding of the electric public utility, any affiliate, or any other person or legal entity.
  4. All or any portion of security property created by a financing order may be sold, assigned, transferred or conveyed to an assignee for the purpose of acquiring, owning or administering the security property, issuing rate reduction bonds or a combination of these purposes. Any sale, assignment, transfer or conveyance of security property shall be governed by Sections 77-3-111 through 77-3-127.
  5. Any sale, assignment, transfer or conveyance of security property to an assignee shall constitute an absolute transfer and true sale of, and not a pledge of or secured transaction relating to, the seller’s right, title and interest in, to and under the security property if the documents governing the transaction expressly state that the transaction is a sale or other absolute transfer. A sale, assignment, transfer or conveyance shall be effective only when all of the following have occurred:
    1. The financing order has been issued and has become final;
    2. The sale agreement, purchase agreement or other documents evidencing the sale, assignment, transfer or conveyance of the security property have been executed and delivered to the assignee; and
    3. Value has been given for the security property.
  6. The characterization of the sale, assignment, transfer or conveyance of the security property as an absolute transfer and true sale and the corresponding characterization of the property interest of the assignee, shall not be affected or impaired by, among other things, the occurrence of any of the following factors:
    1. Commingling of rate reduction bond charge revenues with other revenues of the electric public utility or any assignor;
    2. The retention by the electric public utility or assignor of (i) a partial or residual interest, including an equity interest, in the security property, whether direct or indirect, or whether subordinate or otherwise, or (ii) the right to recover costs associated with taxes, franchise fees or other fees imposed on the collection of rate reduction bond charge revenue;
    3. Any recourse that the assignee may have against the electric public utility or any assignor;
    4. Any indemnification rights, obligations or repurchase rights made or provided by the electric public utility or any assignor;
    5. The obligation of the assignor to collect and remit rate reduction bond charge revenue to or on behalf of an assignee;
    6. The regulatory or accounting treatment of the sale, assignment or transfer for tax, financial reporting or other purposes;
    7. Any application of the true-up mechanism as provided in Section 77-3-119;
    8. Granting or providing the bondholders a preferred right to the security property or credit enhancement by the electric public utility or its affiliates with respect to the rate reduction bonds; or
    9. Any rights or interests of the electric public utility in any remaining rate reduction bond charge revenue which may vest upon full payment of the rate reduction bonds as provided for in Section 77-3-117(1)(j).
  7. Once sold, transferred, assigned or conveyed to an assignee as provided in Sections 77-3-111 through 77-3-127, security property shall not be an asset of the electric public utility; but, the electric public utility shall have only a duty to collect and remit to the issuing entity all rate reduction bond charge revenue with respect to the rate reduction bonds.

HISTORY: Laws, 2013, ch. 305, § 9, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-125. Security property as collateral to secure payment of financing costs; relation to Uniform Commercial Code.

  1. All or any portion of the security property may be pledged or otherwise used by the issuing entity as collateral or other security to secure the payment of financing costs. Except as specifically provided in Sections 77-3-111 through 77-3-127 or in any of the financing documents, only Sections 77-3-111 through 77-3-127 and not the Uniform Commercial Code shall govern:
    1. Security property and any right, title or interest of an electric public utility, an assignee or an issuing entity, whether before or after the issuance of a financing order, in such security property;
    2. The validity, creation, attachment, grant, perfection, priority and enforcement of liens and security interests in security property to secure payment of financing costs;
    3. The validity, attachment, perfection and priority with respect to the transfer of an interest or right or the pledge or creation of a security interest in any security property.

      In the eventof any conflict between Sections 77-3-111 through 77-3-127 and any other lawregarding the provisions of Section 77-3-125, Sections 77-3-111 through 77-3-127 shall govern tothe extent of the conflict.

  2. A valid, enforceable and attached lien and security interest in security property shall be created upon the occurrence of all of the following and in no other manner:
    1. The issuance of a financing order contemplating a security interest in the security property;
    2. The execution and delivery of a security agreement by the issuing entity in connection with the issuance of rate reduction bonds which grants a security interest in the security property; and
    3. The giving of value for the rate reduction bonds.
  3. A valid, enforceable and attached security interest may be created in the security property without any physical delivery of collateral or other act, and shall be perfected against all parties upon the filing of a financing statement in the Office of the Secretary of State of Mississippi and shall thereafter be a continuously perfected lien, and such security interest in security property shall have priority over any other lien, created by contract, operation of law or otherwise, which may subsequently be perfected in the security property unless the holder of any such prior lien has agreed in writing otherwise.
  4. Any sale, assignment, transfer or conveyance of an interest in security property shall not affect the priority of a security interest previously perfected in such security property against all parties having claims of any kind, including any judicial lien or other lien creditors or any claims of the assignor or creditors of the assignor, other than creditors holding a prior security interest, ownership interest or assignment in the security property previously perfected in accordance with Sections 77-3-111 through 77-3-127.
  5. The filing of a financing statement with the Office of the Secretary of State of Mississippi in accordance with this section shall be the only method of perfecting a lien on or security interest in security property. The Office of the Secretary of State of Mississippi shall maintain any financing statement filed pursuant to this section in the same manner that the Office of the Secretary of State of Mississippi maintains financing statements filed against transmitting utilities under Section 75-9-501(b). The filing of any financing statement pursuant to this section shall be governed by the provisions regarding the filing of financing statements in Part 5 of Chapter 9, Title 75 of the Mississippi Code of 1972, codified at Miss. Code Ann. Section 75-9-501 et seq.; provided, however, no continuation statement need be filed to maintain a perfected, valid, enforceable and attached security interest in security property.
  6. The priority of a sale, assignment, transfer, conveyance, lien or security interest perfected in security property pursuant to Sections 77-3-111 through 77-3-127 is not impaired by any later modification of the financing order or security property, any application of the true-up adjustment mechanism, or by the commingling of funds arising from the security property with other funds of an electric public utility or collection agent, and any other right, title, lien or security interest that may apply to those funds shall be terminated as to all funds transferred to an issuing entity, assignee, or financing party directly or transferred to a segregated account for the benefit of an issuing entity, assignee, or financing party.
  7. The description of security property being sold, assigned, transferred or conveyed to an assignee in any sale agreement, purchase agreement, or other transfer agreement, granted or pledged to a secured party in any security agreement, pledge agreement, or other security document, or indicated in any financing statement, shall be sufficient if it describes the financing order that created the security property and states that such agreement or financing statement covers all or part of the security property described in such financing order. This subsection applies to all purported sales, assignments, transfers or conveyances of, and all purported grants or liens or security interests in, security property, regardless of whether the related agreements were entered into or financing statements were filed, before or after the original effective date of this subsection.
  8. Any right, title or interest pertaining to a financing order, including, but not limited to, the associated security property and rate reduction bond charge revenues shall not be deemed proceeds of any right or interest other than in the financing order and the security property arising from the financing order.

HISTORY: Laws, 2013, ch. 305, § 10, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-127. Liability on rate reduction bonds issued under a financing order.

  1. Rate reduction bonds issued under a financing order shall not constitute a debt or a pledge of the faith and credit or taxing power of the State of Mississippi or of any county, municipality, or any other political subdivision of this state. The issuing entity, assignee, bondholders and financing parties shall have no right to have taxes levied by this state or the taxing authority of any county, municipality, or any other political subdivision of this state for the payment of the principal of, interest on or other financing costs related to rate reduction bonds. The issuance of rate reduction bonds does not, directly, indirectly, or contingently, obligate this state or any county, municipal corporation, or political subdivision of this state to levy any tax or make any appropriation for payment of the principal of, interest on or other financing costs related to the rate reduction bonds.
  2. The state pledges to and agrees with the bondholders, any issuing entity, and any other party under a financing order that the state will not take or permit any action that impairs the value of the security property under the financing order or, except as allowed under Section 77-3-119, reduce, alter or impair rate reduction bond charges that are imposed, charged, collected or remitted for the benefit of the bondholders, any assignee, and any issuing entity, until all principal, interest and redemption premium in respect of rate reduction bonds, all financing costs, all issuing costs and all amounts to be paid to an issuing entity are paid or performed in full. Any attempt by resolution, bill, motion, order, referendum, amendment, judgment, decision, opinion or other act made contrary to the above pledge by the legislative branch, executive branch, judicial branch, commission or citizenry which impairs or attempts to impair the security property shall require just compensation to the security property owner or owners prior to taking effect.
  3. An issuing entity may include the pledge specified in subsection (2) of this section in the rate reduction bonds, financing documents, and documentation related to the issuance and marketing of the rate reduction bonds.

HISTORY: Laws, 2013, ch. 305, § 11, eff from and after passage (approved Feb. 26, 2013).

Editor’s Notes —

Laws of 2013, ch. 305, §§ 1 and 2, provide:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Public Utility Rate Mitigation and Reduction Act.’

“SECTION 2. The Legislature finds, determines and declares the following to be in the public interest and the policy of the State of Mississippi:

“(1) It is the policy of the State of Mississippi to regulate the business of electric public utilities in such a manner that allows the recovery of prudently incurred costs.

“(2) Consistent with the policy of the State of Mississippi to seek out and implement measures designed to provide the lowest reasonable electric public utility rates, public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities, as compared to traditional utility ratemaking options available to the Public Service Commission, and ensures the continued financial strength of Mississippi electric public utilities.

“(3) Public utility securitization financing arrangements provides lower customer rates for newly constructed base load electric generating facilities and ensures the continued financial strength of Mississippi electric public utilities.

“(4) The reduction of customer rate impacts for base load electric generating facilities through securitization is in the public interest.”

§ 77-3-129. Sections 77-3-111 through 77-3-127 deemed full and complete authority for exercise of powers granted therein.

The provisions of Sections 77-3-111 through 77-3-127 shall be deemed to be full and complete authority for the exercise of the powers therein granted. It is the intent of the Legislature that the authority provided under Sections 77-3-111 through 77-3-127 be limited to the implementation of alternate financing arrangements that may be contemplated by any agreement entered into by the Public Service Commission and the affected electric public utility relating to any qualifying facility as defined in Section 77-3-111.

HISTORY: Laws, 2013, ch. 305, § 12, eff from and after passage (approved Feb. 26, 2013).

Article 3. Failure or Refusal to Construct Facilities Necessary to Provide Service.

Article 3. General Provisions.

§ 77-3-201. Definitions.

As used in this article, the following words and phrases shall include the meanings ascribed by this section unless the context requires a different meaning:

“Owner” shall specifically refer to a holder of an interest in real property which is proposed to be served by a public utility as defined in subparagraph (iv) of paragraph (d) of Section 77-3-3. “Owner” shall include both the plural and the singular and any person, firm, corporation, association or combination of such entities.

“Public utility” includes any person, firm, corporation or association and any public body, political subdivision, agency or instrumentality thereof owning or owning and operating a public utility service described by subparagraph (iv) of paragraph (d) of Section 77-3-3. However, an incorporated municipality which owns or owns and operates such a described public utility service shall not be subject to the provisions of this article. The term “public utility” also includes the successors and assigns of any such public utility.

HISTORY: Codes, 1942, § 7716-56; Laws, 1968, ch. 504, § 6, eff from and after passage (approved July 4, 1968).

Editor’s Notes —

At the direction of the co-counsel for the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, an error in a statutory reference in (a) and (b) was corrected by substituting “subparagraph (iv) of paragraph (d)” for “subparagraph (4) of paragraph (d).”

RESEARCH REFERENCES

ALR.

Liability of one other than electric power or light company or its employee for interruption, failure, or inadequacy of electric power. 15 A.L.R.4th 1148.

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.

§ 77-3-203. Property owners’ remedies upon utility’s failure or refusal to provide service.

If any public utility, other than a municipality, shall fail or refuse to construct within its certificated area any facilities necessary to provide public utility service, or shall fail or refuse to make written commitment to do so, within a reasonable time after written request for such service by any owner of property, which request shall specify with reasonable particularity the type of service desired, such owner may, in addition to any other legal or administrative remedy provided by law and either separately or jointly with any other owner or owners in the area affected, pursue either of the following alternatives or a combination thereof:

In the name of such owner or jointly with any other person, firm or corporation, pursuant to the provisions of Section 77-3-13, apply to the Mississippi Public Service Commission for a certificate of public convenience and necessity to construct the appropriate facilities for furnishing such service or services and to furnish the same within the area affected, and, provided the commission finds that the cancellation of the outstanding certificate would be in the best interest of the consuming public as provided by Section 77-3-21, the fact that a certificate for the same type service or services may have been previously issued to the public utility failing or refusing to furnish such service shall not be prejudicial to such application; or

File with the Mississippi Public Service Commission a set of proposed plans for construction of such facilities and connection of the same with the system or systems of the utility or utilities affected, such plans to conform in all respects to all reasonable requirements of said commission and any other public body having lawful authority to establish standards of construction. The owner shall give twenty (20) days’ notice of such filing to said commission and any other public bodies aforesaid and to the public utility or utilities holding a certificate for the area affected. If, after such notice and opportunity for protest and hearing thereon, the commission shall approve such plans or any modification thereof as being supported by present or future public convenience and necessity, the owner may give notice as hereinafter provided and then proceed to let contracts for the construction of the same or to construct the same and, upon proper completion thereof and conveyance or assignment of such facilities and easements to the utility, the holder of the certificate for the area and service affected shall be obliged promptly to connect the same to its systems and provide such service.

HISTORY: Codes, 1942, § 7716-51; Laws, 1968, ch. 504, § 1, eff from and after passage (approved July 4, 1968).

RESEARCH REFERENCES

ALR.

Civil Rights: racial or religious discrimination in furnishing of public utilities services or facilities. 53 A.L.R.3d 1027.

Right of public utility to deny service at one address because of failure to pay for past service rendered at another. 73 A.L.R.3d 1292.

CJS.

73B C.J.S., Public Utilities §§ 5, 6, 8.

§ 77-3-205. Determination of responsibility for costs where construction of facilities is undertaken by owner.

If such plans or any modification thereof shall be approved by the commission as provided by paragraph (b) of Section 77-3-203, the commission may enter an order either in conjunction with such approval, if notice has sufficiently dealt with the subject matter, or pursuant to special application and notice thereof to the parties, that will determine whether the right and responsibility of constructing the facilities for making such connection shall devolve on the owner or the utility and whether the whole or any part of the reasonable expense of connecting such facilities with the system or systems of the utility or utilities affected should be borne initially by such utility or utilities. If the commission should relieve any utility affected from initially undertaking the whole or any part of such connection expense, the commission may nevertheless include the portion of such expense to be initially borne by the owner in the cost of facilities for which the owner may be reimbursed as hereinafter provided.

HISTORY: Codes, 1942, § 7716-52; Laws, 1968, ch. 504, § 2, eff from and after passage (approved July 4, 1968).

JUDICIAL DECISIONS

1. In general.

Under §§77-3-201 et seq., the public service commission was authorized to determine whether the right and the responsibility of constructing water and sewer facilities to connect with the system of the utility affected should be with the owner or the utility, and whether the whole or any part of the expense of connecting the facilities with the system should be borne initially by the utility, and whether the owner should be reimbursed by the utility for that portion of reasonable cost of construction of the facilities and the connection expense or part thereof approved by the commission. Hinds--Rankin Metropolitan Water & Sewer Ass'n v. Mississippi Public Service Com., 263 So. 2d 546, 1972 Miss. LEXIS 1334 (Miss. 1972).

§ 77-3-207. Owner’s agreement with utility as to costs; contract for construction in absence of agreement.

In the event an owner is authorized to construct or cause to be constructed the whole or any part of such proposed facilities pursuant to paragraph (b) of Section 77-3-203 or pursuant to such authority and Section 77-3-205, the owner may first reach written agreement with the holder of the certificate for the area and service affected as to the reasonable cost of doing so, or for a maximum figure of reasonable cost of doing so, which reasonable cost in either event shall be subject to approval of the public service commission. If no such agreement can be reached, the owner may publish notice that bids will be received for construction of the same, which notice shall be published in the manner and for the time as required by law for publication of such notices with respect to contracts for construction by boards of supervisors of counties of this state. However, no contract shall be consummated pursuant thereto until the contract shall be approved by the commission. No such contract shall be executed unless the contractor shall furnish a good and sufficient surety bond, executed by the contractor or contractors and one or more surety companies authorized to do business in this state for the faithful performance of such contract.

HISTORY: Codes, 1942, § 7716-53; Laws, 1968, ch. 504, § 3, eff from and after passage (approved July 4, 1968).

§ 77-3-209. Allocation of costs among proposed consumer outlets; reimbursement by utility.

Upon approval by the public service commission of the reasonable cost of construction of the necessary facilities for furnishing such service and the whole or a reasonable part of the expense of connecting such facilities with the system of the utility affected, the owner may apply to said commission for an apportionment of such costs among the proposed outlets for consumer service. Any final order of allocation by the commission shall be binding upon the owner and the public utility affected. After such allocation has been made, the public utility affected shall be obliged to reimburse to the owner that portion of the reasonable cost of construction of such facilities and connection expense or the portion thereof approved by the commission, to the extent of the respective amount thereof allocated to any proposed consumer outlet, such reimbursement to be made within thirty (30) days of commencement of consumer service at such outlet.

HISTORY: Codes, 1942, § 7716-54; Laws, 1968, ch. 504, § 4, eff from and after passage (approved July 4, 1968).

§ 77-3-211. Notice prior to construction; inspection during construction and upon completion; deviations.

Before construction shall be undertaken pursuant to paragraph (b) of Section 77-3-203 or Section 77-3-205, five (5) days’ written notice shall be given to the public service commission and any other public body having lawful authority over standards of such construction, the public utility affected, and each owner instituting proceedings unless notice for that period shall be waived. Each party in interest and each public body affected shall have the right of entry and inspection of such construction as it progresses and, in addition to any other remedy at law or in equity, may obtain a cease and desist order from the commission to prevent any unauthorized deviation from the plans or modifications thereof approved by said commission or from the reasonable requirements of said commission or other public body aforesaid. All parties entitled to notice shall have the right of inspection of such facilities upon completion. No public utility shall be obliged to accept any conveyance or assignment of such facilities that may be disapproved by said commission or other public body having lawful authority over standards of construction or use of the same or that may be subject to any lien or encumbrance other than the obligation of reimbursement provided for by this article.

HISTORY: Codes, 1942, § 7716-55; Laws, 1968, ch. 504, § 5, eff from and after passage (approved July 4, 1968).

§ 77-3-213. Effect of conveyance of property after institution of proceedings on owner’s rights.

The conveyance in whole or in part of the property affected after institution of proceedings under this article shall not divest the owner, his heirs, personal representatives, successors or assigns of his, its or their rights accrued under this article unless the same be specifically conveyed or assigned by such conveyance or other written instrument.

HISTORY: Codes, 1942, § 7716-56; Laws, 1968, ch. 504, § 6, eff from and after passage (approved July 4, 1968).

§ 77-3-215. Effect of transfer or assignment of public utility system.

The transfer or assignment of the whole or any part of the public utility system of any such public utility shall not defeat any prior right of service, service connection or reimbursement accrued under this article.

HISTORY: Codes, 1942, § 7716-56; Laws, 1968, ch. 504, § 6, eff from and after passage (approved July 4, 1968).

§ 77-3-217. Provisions are cumulative and not in derogation of prior law; conduct of proceedings and appeals.

The provisions of this article shall be cumulative to, and not in derogation of, Sections 77-3-21 and 77-3-29.

Any proceedings under the provisions of this article before the public service commission shall be held and conducted as provided by Article 1 of this chapter. Appeals shall be available as a matter of right as provided by Sections 77-3-67 to 77-3-73.

HISTORY: Codes, 1942, § 7716-57; Laws, 1968, ch. 504, § 7, eff from and after passage (approved July 4, 1968).

Article 5. Optional Rate Schedules.

§ 77-3-301. Optional rate schedules and minimum charges to be provided in lieu of service charges.

Any person, firm, copartnership or corporation doing business in the State of Mississippi and engaged in the sale or distribution of electricity, gas or water, whose rates or tariffs for such service contain any form of so-called “service charge,” shall be required to have fair and reasonable optional rate schedules and minimum charges that do not contain any form of such so-called “service charge,” so that the consumer may exercise his option as to the form of rate schedule under which said consumer will be billed for service used. Such optional rate schedules shall not require the payment for each unit of electricity, gas, or water consumed, at a rate in excess of the rates per unit prescribed for use which were in effect prior to the establishment of a “service charge” by such person, firm or corporation affected hereby.

HISTORY: Codes, 1942, § 5551; Laws, 1934, ch. 318.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 42.

Practice References.

Accounting for Public Utilities (Matthew Bender).

§ 77-3-303. Itemized bills required.

All bills rendered to consumers by any public service utility affected by this article shall be itemized so as to show in detail the amount of electricity, gas or water consumed and the rate per unit charged.

HISTORY: Codes, 1942, § 5551; Laws, 1934, ch. 318.

§ 77-3-305. Violations.

Any amount of money collected by any public utility in wilful violation of Section 77-3-303 may be recovered by an action at law by the consumer from whom it was collected. In addition thereto, any person, firm, copartnership or corporation violating the provisions of this article, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $50.00 for each offense.

HISTORY: Codes, 1942, § 5551; Laws, 1934, ch. 318.

Cross References —

Criminal offense of supplier of electricity, water or gas installing meters registering excessive usage, see §97-25-3.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

§ 77-3-307. Exemptions.

The provisions of this article shall not apply:

to municipally or privately owned plants where a flat charge only is made, and no meters are in operation;

to any municipally owned and/or operated public service utility, the net income of which said utility is used solely for governmental purposes and/or for the discharge of governmental obligations and not for private gain;

to the Tennessee Valley Authority or any municipality that purchases gas, water or electric lights and power from the Tennessee Valley Authority; or

to any state corporation chartered by the State of Mississippi, or any corporation doing business in the State of Mississippi, which buys electric current and/or power from the Tennessee Valley Authority for distribution for domestic and/or commercial purposes.

HISTORY: Codes, 1942, § 5551; Laws, 1934, ch. 318.

Article 7. Determination of Adequacy of Service by Telegraph and Telephone Companies.

§ 77-3-401. Determination of adequacy of service initiated by petition of attorney general.

Upon the petition therefor by the attorney general, the Mississippi public service commission shall have jurisdiction to determine, after reasonable notice and hearing, whether any domestic telephone or telegraph public service corporation operating under the jurisdiction of the commission, is rendering in a reasonably adequate manner the public service authorized by its charter of incorporation.

HISTORY: Codes, 1942, § 7704; Laws, 1940, ch. 132.

Cross References —

Constitutional declaration of telegraph and telephone companies as common carriers subject to liability as such, see MS Const Art. 7, § 195.

Duty of attorney general to assist and advise commission generally, see §7-5-49.

Telegraph and telephone companies generally, see §77-9-701 et seq.

§ 77-3-403. Notice to corporation to appear before commission.

Upon the filing of a petition therefor by the attorney general with the public service commission, notice shall be given any such corporation requiring the corporation to appear before the commission at a day certain, not less than thirty (30) days, and to show cause why it should not be required within a reasonable time, not less than sixty days after such hearing, to obey the order of the commission made on such hearing. A copy of the petition shall be attached to such notice. Such notice shall be served by mailing it by registered United States mail to any executive officer of such corporation at his usual post office address.

HISTORY: Codes, 1942, § 7705; Laws, 1940, ch. 132.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 178.

20A Am. Jur. Pl & Pr Forms (Rev), Public Utilities, Forms 6, 7 (notice of hearing).

§ 77-3-405. Distinct findings of fact to be made by commission.

Upon the hearing, the testimony shall be taken by the official stenographer of the commission. The commission shall make distinct findings of fact as to: (1) whether the corporation is or is not rendering in a reasonably adequate manner the public service authorized by the corporate charter of such corporation; (2) if not, what would be reasonably necessary to be done to make such service reasonably adequate; (3) whether by reason of its financial condition, such corporation may be reasonably expected to make such changes as would be reasonably necessary to make such service reasonably adequate; (4) what would be a reasonable time, not less than sixty (60) days, within which such changes should be made.

The findings of fact by the commission if supported by substantial evidence, shall be conclusive, and shall not be reversed by any court.

HISTORY: Codes, 1942, § 7706; Laws, 1940, ch. 132.

JUDICIAL DECISIONS

1. In general.

The public service commission is vested with power to adopt administrative orders to make judicial findings and adjudications, and the granting or denial by the commission of an application for certificate of public convenience and necessity, or the granting or denial of an application for a permit to operate as a contract carrier, shall be construed as a judicial finding and appealable as such. Illinois C. R. Co. v. Mississippi Public Service Com., 220 Miss. 439, 71 So. 2d 176, 1954 Miss. LEXIS 459 (Miss. 1954).

On appeal from an order of public service commission, the circuit court has the power to review the findings in actions of the commission, affirm, reverse, amend or change them and an appeal may be taken to the supreme court from the circuit court where the actions and findings of the commission and court may be reviewed, and where a federal question is involved an appeal may be taken to the Supreme Court of the United States. Illinois C. R. Co. v. Mississippi Public Service Com., 220 Miss. 439, 71 So. 2d 176, 1954 Miss. LEXIS 459 (Miss. 1954).

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 181.

§ 77-3-407. Issuance of order requiring changes in service.

If the commission shall find that the corporation may reasonably be expected to make changes in its service, which will render such service reasonably adequate, and shall specify such reasonable changes, and shall fix a time within which changes may be made, then the order of the commission shall be to such extent. If such changes are not made within the time fixed by the commission, the commission shall have authority to forfeit the charter of such corporation, upon five (5) days notice, and a hearing accorded upon the forfeiture. If the commission shall find that the corporation cannot reasonably be expected to make the necessary changes in its service which will render such service reasonably adequate, for reasons stated in the order, then the commission shall have the authority at such time to enter an order forfeiting the corporate charter of such corporation.

HISTORY: Codes, 1942, § 7707; Laws, 1940, ch. 132.

RESEARCH REFERENCES

Am. Jur.

64 Am. Jur. 2d, Public Utilities § 181.

§ 77-3-409. Removal of proceedings to circuit court.

The attorney general, or the corporation, may by certiorari out of the circuit court of the First Judicial District of Hinds County, Mississippi, within ten (10) days from the date of the order in the hearing provided in Section 77-3-403, remove the entire proceeding to such court, which removal shall not operate as a supersedeas. No supersedeas shall be allowed, but the circuit court or the circuit judge in vacation shall examine the record for errors of law. If the said court shall find no errors of law, the order shall be affirmed. If errors of law appear, it shall be reversed, and such reversal shall operate as a stay of such order, and no subsequent action on the charter forfeiture shall be taken by the commission on such order, but the cause shall be remanded to the commission with directions for a new hearing, or dismissed, as the circuit court finds appropriate by reason of errors of law appearing on the face of the record.

HISTORY: Codes, 1942, § 7708; Laws, 1940, ch. 132.

Cross References —

Certiorari to circuit court, see §77-3-413.

§ 77-3-411. Forfeiture of charter for failure to make changes.

If no proceedings are taken under Section 77-3-409, then at the expiration of ten (10) days from the date of such order, such order shall become final, from which no appeal shall lie, and the findings set out in such order shall be conclusively presumed to be correct. Unless the commission is satisfied the changes required by such order have been made within the time prescribed in such order, the commission shall give the notice of five (5) days, as provided in Section 77-3-407, and upon the hearing the commission shall determine whether such changes have or have not been made, as required. If the commission find that such changes have not been made as required, then it shall enter an order incorporating such finding, and forfeiting the charter of such corporation.

HISTORY: Codes, 1942, § 7709; Laws, 1940, ch. 132.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 49, 50 et seq.

§ 77-3-413. Certiorari to circuit court.

At any time within ten (10) days of the entry of the order forfeiting or refusing to forfeit such charter, the attorney general or the corporation may apply to the circuit court of the First Judicial District of Hinds County, for a writ of certiorari, which, if granted, shall have the effect of transferring the record of the last proceeding to the circuit court. The circuit court, or the circuit judge in vacation, shall examine such record for errors of law. If the said court shall find no errors of law, the order shall be affirmed. If errors of law appear, the order shall be reversed and such reversal shall operate as a stay of such order, and the cause shall be remanded to the commission with directions for a new hearing, or dismissal, as the circuit court finds proper from the examination of the record.

HISTORY: Codes, 1942, § 7710; Laws, 1940, ch. 132.

§ 77-3-415. Appeal from judgment of circuit court.

Appeals from the order of the circuit court affirming or reviewing such order may be taken as other appeals are taken to the supreme court.

HISTORY: Codes, 1942, § 7711; Laws, 1940, ch. 132.

§ 77-3-417. Effect of receivership proceedings.

Receivership proceedings at any stage in any court shall not affect any proceedings under the terms of this article. When a petition is filed under the terms of this article, exclusive jurisdiction shall be vested in the public service commission, and any pending receivership shall immediately be terminated, and the trustees shall be appointed by the commission under the terms of Section 77-3-419.

HISTORY: Codes, 1942, § 7712; Laws, 1940, ch. 132.

Cross References —

Receivership proceedings generally, see §§11-5-151 et seq.

§ 77-3-419. Liquidation of business.

All of the provisions of Chapter 35 of Title 11 of the Mississippi Code of 1972 relative to the liquidation of corporations after forfeiture of charter shall apply to the liquidation of any such corporation if the charter thereof is forfeited under the terms of this article, except that the trustees shall be appointed by the public service commission.

HISTORY: Codes, 1942, § 7713; Laws, 1940, ch. 132.

§ 77-3-421. Operations within same territory by second company following forfeiture of first company’s charter.

After the entry of an order forfeiting the charter of incorporation of any telephone or telegraph company, no telephone or telegraph company, whether operated by a person, co-partnership or corporation, shall have the authority to enter the same territory, or any part of it, served by the corporation whose charter has been forfeited, until a certificate of public convenience and necessity is granted by the public service commission, which certificate shall not be granted unless the commission affirmatively finds that the applicant therein is financially able to render telephone or telegraph service within such territory in a reasonably adequate manner. The application for a certificate of public convenience and necessity shall be in such form as the commission may require.

HISTORY: Codes, 1942, § 7714; Laws, 1940, ch. 132.

§ 77-3-423. Necessity that sales, leases or transfers be made to company capable of providing adequate service.

No sale, lease or transfer of any franchises or properties within Mississippi, or any part thereof, of any domestic telephone or telegraph company, whether operated by a person, firm or corporation, shall be valid unless, upon a hearing after reasonable notice, the commission shall find that the person, firm or corporation to whom such sale, lease or transfer is proposed to be made is financially and otherwise capable of rendering telephone or telegraph service in a reasonably adequate manner.

HISTORY: Codes, 1942, § 7714; Laws, 1940, ch. 132.

RESEARCH REFERENCES

Am. Jur.

36 Am. Jur. 2d, Franchises from Public Entities §§ 57 et seq.

§ 77-3-425. Continuation of service in event of sale of business.

In the event any domestic telephone or telegraph company has, within eighteen months prior to May 7, 1940, sold, leased or transferred any of its franchises or properties within the State of Mississippi, then that person, firm or corporation to whom such properties were sold, leased or transferred, or any successor in title thereto, shall be under the obligation to render such telephone or telegraph service in a reasonably adequate manner, and the commission shall have the authority, upon petition of the attorney general, to proceed to investigate the operation of the telephone or telegraph business of the vendee, lessee or transferee, or any successor in title, in the same manner as is provided for in this article as to the domestic corporations. If the commission shall find, after such hearing as provided for domestic corporations, that such vendee, lessee or transferee, or any successor in title, is not rendering such service in a reasonably adequate manner, then the commission shall have the authority to require such changes to be made as it could in the case of domestic corporations, and if such changes are not made as required by the commission, then the commission shall have the authority to forfeit the right of such vendee, lessee, transferee, or any successor in title thereto, to operate a telephone or telegraph business. If the commission shall find that such vendee, lessee, transferee, or any successor in title, cannot be reasonably expected to render such service in a reasonably adequate manner, then the commission shall have the authority to forfeit the right of such vendee, lessee or transferee, or any successor in title, to operate a telephone or telegraph business within Mississippi, and shall appoint trustees for such business, as provided for in Section 77-3-419.

HISTORY: Codes, 1942, § 7715; Laws, 1940, ch. 132.

Article 9. Automatic Dialing-Announcing Devices.

§ 77-3-451. Definitions.

As used in this article, “automatic dialing-announcing device” means any automatic equipment which incorporates a storage capability of telephone numbers to be called or a random or sequential number generator capable of producing numbers to be called and the capability, working alone or in conjunction with other equipment, to disseminate a prerecorded message to the telephone number called.

HISTORY: Laws, 1989, ch. 436, § 1, eff from and after July 1, 1989.

Cross References —

Definition of “violation”, see §77-3-457(a).

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass. 95 A.L.R.3d 411.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state. 37 A.L.R.4th 852.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Am. Jur.

74 Am. Jur. 2d, Telecommunications §§ 199-201.

§ 77-3-453. Public Service Commission to regulate; application of article; hours of operation; use for purpose of inducing purchase of goods or services prohibited; exceptions.

  1. The connection of automatic dialing-announcing devices to a telephone line is subject to this article and to the jurisdiction, control and regulation of the Public Service Commission.
  2. No person shall operate an automatic dialing-announcing device except in accordance with this article. The use of such device by any person, either individually or acting as an officer, agent or employee of a person or corporation operating automatic dialing-announcing devices, is subject to this article.
  3. No person shall operate an automatic dialing-announcing device to place a call which is received by a telephone in this state during the hours between 9 p.m. and 9 a.m. Central time zone.
  4. No person shall operate an automatic dialing-announcing device to place a call which is received by a telephone in this state for the purpose of persuading, inducing or encouraging the person called to purchase any type of product or service.
  5. This article does not apply to any automatic dialing-answering device which is not used to randomly or sequentially dial telephone numbers but which is used solely to transmit a message to an established business associate, customer or other person having an established relationship with the person using the automatic dialing-answering device to transmit the message, or to any call generated at the request of the recipient.
  6. The Public Service Commission may determine any question of fact arising under this section.

HISTORY: Laws, 1989, ch. 436, § 2, eff from and after July 1, 1989.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass. 95 A.L.R.3d 411.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state. 37 A.L.R.4th 852.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Validity, construction and application of Telephone Consumer Protection Act (47 USC § 227). 132 A.L.R. Fed. 625.

Am. Jur.

74 Am. Jur. 2d, Telecommunications §§ 199-201.

§ 77-3-455. Requirements for placing calls using automatic dialing-announcing devices.

  1. Automatic dialing-announcing devices may be used to place calls over telephone lines only pursuant to a prior agreement between the persons involved, by which the person called has agreed that he or she consents to receive such calls from the person calling, or as specified in subsection (2) of this section.
  2. Whenever telephone calls are placed through the use of an automatic dialing-announcing device, such device shall be operated by a person who shall do all of the following:
    1. State the nature of the call and the name, address and telephone number of the business or organization being represented, if any.
    2. Inquire whether the person called consents to hear the prerecorded message of the person calling.
    3. Disconnect the automatic dialing-announcing device from the telephone line upon the termination of the call by either the person calling or the person called.

HISTORY: Laws, 1989, ch. 436, § 3, eff from and after July 1, 1989.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass. 95 A.L.R.3d 411.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state. 37 A.L.R.4th 852.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Validity, construction and application of Telephone Consumer Protection Act (47 USCS § 227). 132 A.L.R. Fed. 625.

Am. Jur.

74 Am. Jur. 2d, Telecommunications §§ 199-201.

§ 77-3-457. Application to connect automatic dialing-announcing device; penalties.

No person shall connect any automatic dialing-announcing device to any telephone line without first making written application to the telephone corporation within whose service area telephone calls through the use of such device are proposed to be placed. In such application, the person shall provide information as to the type of automatic dialing-announcing device proposed to be connected, the time of day such telephone calls are proposed to be placed using such device, the anticipated number of calls proposed to be placed during the specified calling period, the average length of a completed call and such additional information as the corporation or the commission may require. Upon receiving such an application for service, the corporation shall review the furnished information and, if it appears that calling patterns would create a traffic overload condition or the service would be detrimental to the services of other customers of the corporation, it may deny the application or modify the application and grant the application as so modified.

Any person violating this article is guilty of a civil offense and is subject to either or both of the following penalties:

A fine not to exceed Five Hundred Dollars ($500.00) for each violation, levied and enforced by the Public Service Commission, on complaint or on its own motion. For purposes of this article “violation” means each call placed by an automatic dialing-announcing device connected contrary to the provisions of this article.

Disconnection of telephone service to the automatic dialing-announcing device for a period of time which shall be specified by the Public Service Commission.

HISTORY: Laws, 1989, ch. 436, § 4, eff from and after July 1, 1989.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass. 95 A.L.R.3d 411.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state. 37 A.L.R.4th 852.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Am. Jur.

74 Am. Jur. 2d, Telecommunications §§ 199-201.

§ 77-3-459. Legislative intent; retroactive effect of article.

It is the intent of the Legislature that this article shall apply to any automatic dialing-announcing devices connected to any telephone line both prior and subsequent to July 1, 1989.

HISTORY: Laws, 1989, ch. 436, § 5, eff from and after July 1, 1989.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass. 95 A.L.R.3d 411.

Forum state’s jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state. 37 A.L.R.4th 852.

Telephone calls as nuisance. 53 A.L.R.4th 1153.

Am. Jur.

74 Am. Jur. 2d, Telecommunications §§ 199-201.

Article 11. Dual Party Relay System to Provide Telecommunications Devices for the Deaf and Hearing or Speech Impaired.

§ 77-3-501. Legislative findings.

The Legislature of the State of Mississippi finds:

That telephone service provides a rapid and essential communications link among the general public and with essential offices and organizations such as police, fire and medical facilities;

That all persons should have basic telephone service available to them at a fair and equitable cost;

That a significant portion of Mississippi’s hearing and speech impaired population have profound disabilities which render normal telephone equipment useless without additional specialized devices; and

That there exists a need for a program whereby access to basic telephone service for hearing and speech impaired persons is equal in cost to the amount paid by other telephone customers.

HISTORY: Laws, 1990, ch. 321, § 1, eff from and after passage (approved March 12, 1990).

§ 77-3-503. Definitions; funding of agency expenses; deposit of monies into State General Fund.

The following terms and phrases when used in this article shall have the following meaning ascribed to them, except where the context clearly indicates a different meaning:

“Deaf person” means an individual who is unable to hear and understand oral communication, with or without the assistance of amplification devices.

“Dual party relay system” means a procedure whereby a deaf, hearing or speech impaired TDD user can communicate with an intermediary party, who then orally relays the first party’s message or request to a third party, or vice versa.

“Exchange access facility” means the access from a particular telephone subscriber’s premise to the telephone system of a local exchange telephone company. Exchange access facilities include local exchange company provided access lines, private branch exchange trunks and centrex network access registers, all as defined by tariffs of telephone companies as approved by the commission.

“Hard of hearing person” means an individual who has suffered a permanent hearing loss which is severe enough to necessitate the use of amplification devices to hear oral communication.

“Hearing impaired person” means a person who is deaf or hard of hearing.

“Ring signaling device” means a mechanism such as a flashing light which visually indicates that a communication is being received through a telephone line. This phrase also means a mechanism such as adjustable volume ringers and buzzers which audibly and loudly indicate an incoming telephone communication.

“Speech impaired person” means an individual who has suffered a loss of oral communication ability which prohibits normal usage of a standard telephone handset.

“Telecommunications device” or “telecommunications device for the deaf, hearing or speech impaired” or “TDD” means a keyboard mechanism attached to or in place of a standard telephone by some coupling device used to transmit or receive signals through telephone lines.

“Telephone company” means every corporation, company, association, joint stock association, partnership, and person and their lessees, trustees or receivers appointed by any court whatsoever, and every city or town owning, operating or managing any telephone line or part of a telephone line used in the conduct of the business of affording telephonic communication service for hire within this state.

“Telephone line” includes conduits, ducts, poles, wires, cables, crossarms, receivers, transmitters, instruments, machines, appliances, instrumentalities and all devices, including radio and other advancements of the art of telephony, real estate, easements, apparatus, property and routes used and operated to facilitate the business of affording telephonic communication services to the public for hire within this state.

“Trust fund” means the Dual Party Relay Service Trust Fund which is a specific trust to be created by the Public Service Commission and to be established, invested, managed and maintained for the exclusive purpose of fulfilling the provisions of this article according to Public Service Commission rules and regulations.

From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.

From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1990, ch. 321, § 2; Laws, 2016, ch. 459, § 55, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2016 amendment added the last two paragraphs.

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

§ 77-3-505. Statewide program to provide telephone access to speech or hearing impaired persons; commission not liable for claims, actions, etc. arising out of program.

  1. The Mississippi Public Service Commission shall establish, implement, administer, regulate and promote a statewide program to provide telephone access to persons who are speech or hearing impaired.
  2. The program shall include but not be limited to:
    1. A statewide dual party relay service;
    2. The establishment of characteristics and performance standards for TDD ring signaling devices and volume control handsets;
    3. A single supplier statewide relay system to handle all intrastate TDD calls; and
    4. The promulgation of procedures, regulations, rules, guidelines and criteria to establish, implement, administer, regulate and promote all aspects of the dual party relay service and this article where not prohibited by law.
  3. The commission may use assistance from public agencies of the state and federal government or from private organizations and industry to accomplish the purposes of this article.
  4. The commission shall not be liable for any claims, actions, damages or causes of action, civil or criminal, arising out of or resulting from the establishment, participation in or operation of the dual party relay system service.
  5. The provider of the dual party relay system service, and the employees of the provider, shall not be liable for any claims, actions, damages or causes of action, civil or criminal, for:
    1. Maintaining the confidentiality of each relayed conversation;
    2. Relaying any message from one party to another in a relayed conversation; or
    3. Any error made in the transcription, transmission or transliteration of any message from one party to another in a relayed conversation, except for errors resulting from gross negligence, intentional acts or willful misconduct.

HISTORY: Laws, 1990, ch. 321, § 3; Laws, 1991, ch. 485, § 1, eff from and after July 1, 1991.

Cross References —

Charges for use of dual party relay service, see §77-3-507.

§ 77-3-507. Maintenance surcharge on local exchange access facilities; Dual Party Relay Service Trust Fund; source of funds; use of funds; charges for use of relay service; funding of agency expenses; deposit of monies into State General Fund.

  1. The Public Service Commission may impose upon all local exchange telephone companies operating in the State of Mississippi a monthly relay service fee in an amount to be determined by the commission based upon the amount of funding necessary to accomplish the purposes of this article and to provide dual party telephone relay services on a continuous basis. Such fees shall be paid by the local exchange companies to the credit of the Dual Party Relay Service Trust Fund. The commission may authorize local exchange companies to recover relay service fees through a surcharge on their customers in the manner prescribed by the commission. The relay service fees remitted by the local exchange companies shall not be subject to any tax, fee or assessment, nor shall it be considered revenue of the local exchange companies. The Dual Party Relay Service Trust Fund shall be credited with all interest income and earnings of the fund. The fund shall be established, invested and managed for the exclusive purpose of fulfilling the provisions of this article according to rules and regulations established by the Public Service Commission.
  2. Monies in the fund shall also include any appropriations authorized by the Legislature, any available funds authorized by the Public Service Commission, grants from other governmental or private entities, and any contributions or donations received by the Public Service Commission for the dual party relay service. All monies in the Dual Party Relay Service Trust Fund shall be used solely for the administration and operation of a statewide program to provide telecommunications access to persons who are speech and hearing impaired or similarly impaired.
  3. The users of the relay service shall be charged for telephone services, without additional charges for the use of the relay service other than any surcharge which may be imposed upon them under this section. The calling or called party shall bear an expense for making intrastate nonlocal calls considered and approved by the Public Service Commission as being equitable in comparison with non-TDD or DPR service customers.
  4. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  5. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1990, ch. 321, § 4; Laws, 1991, ch. 386, § 1; Laws, 1992, ch. 331, § 1; Laws, 2016, ch. 459, § 56, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2016 amendment added (4) and (5).

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

Direction to establish, and definition of, Dual Party Relay Service Trust Fund, see §77-3-503.

§ 77-3-509. Advisory committee on telecommunications services for hearing or speech impaired persons; members; terms; compensation; funding of agency expenses; deposit of monies into State General Fund.

  1. On or before August 1, 1990, the Public Service Commission shall appoint an advisory committee to monitor the statewide telecommunications relay access service and advise and make recommendations to the Public Service Commission in pursuing services which meet the needs of the hearing or speech impaired and others similarly impaired in communicating with other users of telecommunications services.
  2. The advisory committee shall be composed of:
    1. One (1) deaf person recommended by the Mississippi Association of the Deaf;
    2. One (1) speech or hearing impaired person recommended by the Mississippi Association for Retired Persons;
    3. One (1) person recommended by the Coalition of Citizens with Disabilities;
    4. One (1) representative of telecommunications utilities chosen from a list of candidates provided by the Mississippi/Alabama Telephone Association;
    5. One (1) representative of the Mississippi Speech and Hearing Association;
    6. One (1) representative of the Veterans Administration;
    7. One (1) representative from Vocational Rehabilitation Deaf Services;
    8. One (1) hearing impaired representative of the Mississippi School for the Deaf;
    9. Two (2) representatives chosen from the Public Service Commission’s staff and employees;
    10. One (1) person appointed by the Speaker of the House of Representatives;
    11. One (1) person appointed by the Lieutenant Governor of the Senate;
    12. One (1) representative from the provider of the DPR service; and
    13. Three (3) “at-large” individuals who have particular skills, knowledge, experience or ability but who are not necessarily speech or hearing impaired or otherwise affiliated with an organization serving the speech or hearing impaired.

      The commission, in its discretion, may name a successor or similar organization to be represented on the committee if an organization or agency named in this subsection ceases to exist.

  3. The committee shall be appointed based on candidate names submitted by the recommending agency or organization. Each member of the advisory committee shall serve for a term of two (2) years. A member whose term has expired shall continue to serve until a qualified replacement is appointed. The members of the advisory committee shall serve without compensation but shall be entitled to reimbursement for travel and expenses incurred in the performance of their official duties and per diem, which shall be paid out of the trust fund on the same basis established for state employees.
  4. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law.
  5. From and after July 1, 2016, no state agency shall charge another state agency a fee, assessment, rent or other charge for services or resources received by authority of this section.

HISTORY: Laws, 1990, ch. 321, § 5; Laws, 2000, ch. 520, § 1; Laws, 2016, ch. 459, § 57, eff from and after July 1, 2016.

Editor’s Notes —

Laws of 2016, ch. 459, § 1, codified as §27-104-201, provides:

“SECTION 1. This act shall be known and may be cited as the ‘Mississippi Budget Transparency and Simplification Act of 2016.’ ”

Amendment Notes —

The 2000 amendment deleted former (2)(h); inserted present (2)(j) and redesignated the remaining subsections accordingly; rewrote present (2)(k); inserted the paragraph following (2)(m); and in (3), inserted “and expenses incurred in the performance of their official duties” and deleted “incurred in the performance of their official duties” following “state employees.”

The 2016 amendment added (4) and (5).

Cross References —

Prohibition against one state agency charging another state agency fees, etc., for services or resources received, see §27-104-203.

Defrayal of expenses of certain state agencies by appropriation of Legislature from General Fund, see §27-104-205.

§ 77-3-511. Commission to implement relay service within one year; report to Legislature.

  1. The Public Service Commission shall commit all acts necessary to implement a dual party relay service in as expeditious a manner as possible not exceeding one (1) year from March 12, 1990.
  2. The Public Service Commission shall report to the Legislature on or before January 1, 1991, the status and conditions of the dual party relay service and other aspects of the programs specified in this article.

HISTORY: Laws, 1990, ch. 321, § 6, eff from and after passage (approved March 12, 1990).

Article 13. Unsolicited Residential Telephonic Sales Calls.

§ 77-3-601. Definitions.

As used in this article:

“Telephonic sales call” means a call made by a telephone solicitor to a consumer for the purpose of soliciting a sale of any consumer goods or services, or for the purpose of soliciting an extension of credit for consumer goods or services, or for the purpose of obtaining information or an extension of credit for these purposes.

“Consumer goods or services” means any real property or any tangible or intangible personal property which is normally used for personal, family or household purposes, including, without limitation, any property intended to be attached to or installed in any real property regardless of whether it is attached or installed, as well as cemetery lots and time-share estates, and any services related to the property.

“Unsolicited telephonic sales call” means a telephonic sales call other than a call made:

In response to an express request of the person called;

In connection with an existing debt or contract, payment or performance which has not been completed at the time of the call; or

To any person with whom the telephone solicitor has an established business relationship.

“Consumer” means an actual or prospective purchaser, lessee or recipient of consumer goods or services.

“Merchant” means a person who, directly or indirectly, offers or makes available to consumers any consumer goods or services.

“Telephone solicitor” means any natural person, firm, organization, partnership, association, corporation, or a subsidiary or affiliate thereof, doing business in this state, who makes or causes to be made a telephonic sales call.

“Doing business in this state” refers to businesses who conduct telephonic sales calls from a location in Mississippi or from other states or nations to consumers located in Mississippi.

“Established business relationship” means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a consumer with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by such person or entity, which relationship has not been previously terminated by either party.

HISTORY: Laws, 1993, ch. 538, § 1, eff from and after July 1, 1993.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state statute or law pertaining to telephone solicitation. 44 A.L.R.5th 619.

§ 77-3-603. Conduct of telephone solicitors regulated.

Any telephone solicitor who makes an unsolicited telephonic sales call to a residential telephone number shall:

Make calls between the hours of 8:00 a.m. and 9:00 p.m., Central Standard Time, Monday through Friday, and between the hours of 8:00 a.m. and 9:00 p.m. on Saturdays (no calls shall be made on Sundays);

Identify himself or herself by his or her true first and last names and the business on whose behalf he or she is soliciting immediately upon making contact by telephone with the person who is the object of the telephone solicitation; and

Discontinue the call immediately if at any time during the conversation the person being solicited expresses disinterest in continuing the call or sales presentation.

HISTORY: Laws, 1993, ch. 538, § 2, eff from and after July 1, 1993.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state statute or law pertaining to telephone solicitation. 44 A.L.R.5th 619.

§ 77-3-605. Registration of telephone solicitors with Attorney General; surety bond.

Any telephone solicitor shall apply for a certificate of registration from the Office of the Attorney General as a condition for doing business in this state. The certificate of registration shall be in a form as prescribed by the Attorney General.

The application for a certificate of registration shall be accompanied by a surety bond in the penal sum of Seventy-five Thousand Dollars ($75,000.00) with conditions and in a form prescribed by the Attorney General. The bond shall provide for the indemnification of any person suffering loss as the result of any fraud, misrepresentation or violation of Sections 77-3-601 through 77-3-619 by the principal. The term of the bond shall be continuous, but it shall be subject to cancellation by the surety in the manner described in this section. The surety may terminate the bond upon giving a sixty-day written notice to the principal and to the Attorney General, but the liability of the surety for acts of the principal and its agents shall continue during the sixty (60) days of cancellation notice. The notice does not absolve the surety from liability which accrues before the cancellation becomes final but which is discovered after that date and which may have arisen at any time during the term of the bond. Unless the bond is replaced by that of another surety before the expiration of the sixty (60) days’ notice of cancellation, the certificate of registration shall be suspended. Any person required pursuant to this section to file a bond with an application for a certificate of registration may file, in lieu thereof, cash, a certificate of deposit, or government bonds in the amount of Seventy-five Thousand Dollars ($75,000.00). Such deposit is subject to the same terms and conditions as are provided for in the surety bond required herein. Any interest or earnings on such deposits are payable to the depositor.

HISTORY: Laws, 1993, ch. 538, § 3, eff from and after July 1, 1993.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state statute or law pertaining to telephone solicitation. 44 A.L.R.5th 619.

§ 77-3-607. Requisites of enforceable contract; certain exceptions; merchant not to charge consumer’s account before receipt of copy of contract.

  1. A contract made pursuant to a telephonic sales call is not valid and enforceable against a consumer unless made in compliance with this section.
  2. A contract made pursuant to a telephonic sales call shall:
    1. Be reduced to writing and signed by the consumer.
    2. Comply with all other applicable laws and rules.
    3. Match the description of goods or services as principally used in the telephone solicitations.
    4. Contain the name, address, and telephone number of the seller, the total price of the contract and a detailed description of the goods or services being sold.
    5. Contain, in bold, conspicuous type, immediately preceding the signature, the following statement:

      “YOU ARE NOT OBLIGATED TO PAY ANY MONEY UNLESS YOU SIGN THIS CONTRACT AND RETURN IT TO THE SELLER.”

    6. Include in its terms any oral or written representations made by the telephone solicitor to the consumer in connection with the transaction.
  3. The provisions of this section do not apply to contractual sales regulated under other sections of the Mississippi statutes and to contractual sales of companies which provide telecommunication services and reach binding agreements by telephone for these services.
  4. A merchant who engages a telephone solicitor to make or cause to be made a telephonic sales call shall not make or submit any charge to the consumer’s credit card account until after the merchant receives from the consumer a copy of the contract which complies with this section.
  5. The provisions of this section do not apply to a transaction:
    1. Made in accordance with prior negotiations in the course of a visit by the consumer to a merchant operating a retail business establishment which has a fixed permanent location and where consumer goods are displayed or offered for sale on a continuing basis;
    2. In which the consumer may obtain a full refund for the return of undamaged and unused goods or a cancellation of services notice to the seller within seven (7) days after receipt by the consumer, and the seller will process the refund within thirty (30) days after receipt of the returned merchandise by the consumer;
    3. In which the consumer purchases goods or services after an examination of a television, radio, or print advertisement or a sample, brochure, or catalog of the merchant that contains the name, address and telephone number of the merchant; a description of the goods or services being sold; and any limitations or restrictions that apply to the offer; or
    4. In which the merchant is a bona fide charitable organization ruled tax-exempt by the Internal Revenue Service.

HISTORY: Laws, 1993, ch. 538, § 4, eff from and after July 1, 1993.

Federal Aspects—

Charitable organizations ruled tax-exempt by Internal Revenue Service, see 26 USCS § 501.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of state statute or law pertaining to telephone solicitation. 44 A.L.R.5th 619.

§ 77-3-609. Exempt parties and transactions.

The provisions of Sections 77-3-601 through 77-3-619 shall not apply to:

A person engaging in commercial telephone solicitation where the solicitation is an isolated transaction and not done in the course of a pattern of repeated transactions of like nature.

A person making calls for religious, charitable, political, education or other noncommercial purposes, or a person soliciting for a nonprofit corporation if that corporation is properly registered as such with the Secretary of State and is included within the exemption of Section 501(c)(3) or Section 501(c)(6) of the Internal Revenue Code.

A person soliciting:

Without the intent to complete or obtain provisional acceptance of a sale during the telephone solicitation;

Who does not make the major sales presentation during the telephone solicitation; or

Without the intent to complete, and who does not complete, the sales presentation during the telephone solicitation, but who completes the sales presentation at a later face-to-face meeting between the seller and the prospective purchaser. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply.

Any licensed securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, “licensed securities, commodities, or investments broker, dealer or investment advisor” means a person subject to license or registration as such by the Securities and Exchange Commission, by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 U.S.C. Sec. 781), or by an official or agency of this state or of any state of the United States.

Any licensed associated person of a securities, commodities, or investments broker, dealer or investment advisor, when soliciting within the scope of his license. As used in this section, “licensed associated person of a securities, commodities, or investment broker, dealer or investment advisor” means any associated person registered or licensed by the National Association of Securities Dealers or other self-regulatory organization as defined by the Securities Exchange Act of 1934 (15 U.S.C. Sec. 781) or by an official or agency of this state or of any state of the United States.

A person primarily soliciting the sale of a newspaper, magazine or periodical of general circulation by its publisher, or by the publisher’s agent through written agreement.

A book, video or record club or contractual plan or arrangement:

Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise;

Which is regulated by the Federal Trade Commission trade regulation concerning “use of negative option plans by sellers in commerce”; or

Which provides for the sale of books, records or videos which are not covered under paragraphs (i) or (ii), including continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis.

Any supervised financial institution or parent, subsidiary or affiliate thereof. As used in this section, “supervised financial institution” means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, consumer finance lender, commercial finance lender or insurer, provided that the institution is subject to supervision by an official or agency of this state, of any state or of the United States.

Any licensed insurance or real estate broker, agent, customer representative or solicitor when soliciting within the scope of his license. As used in this section, “licensed insurance or real estate broker, agent, customer representative or solicitor” means any insurance or real estate broker, agent, customer representative or solicitor licensed by an official or agency of this state or of any state of the United States.

A person soliciting the sale of services provided by a cable television system operating under authority of a franchise or permit.

A person who solicits sales by periodically publishing and delivering a catalog of the seller’s merchandise to prospective purchasers, if the catalog:

Contains a written description or illustration of each item offered for sale;

Includes the business address or home office address of the seller;

Includes at least twenty-four (24) pages of written material and illustrations and is distributed in more than one (1) state; or

Has an annual circulation by mailing of not less than two hundred fifty thousand (250,000).

A person who solicits contracts for the maintenance or repair of goods previously purchased from the person making the solicitation or on whose behalf the solicitation is made.

A telephone company, or its subsidiary or agents, or a business which is regulated by the Mississippi Public Service Commission, or a Federal Communications Commission licensed cellular telephone company or other bona fide radio telecommunication services provider.

Any publicly traded corporation which has securities registered with the Securities and Exchange Commission which are a reported security within the meaning of subparagraph (4) of Regulation Section 240.11a3-1,(a), under the Securities Exchange Act of 1934, or which is exempt from registration under subparagraph (A), (B), (C), (E), (F), (G) or (H) of paragraph (2) of subsection (g) of Section 12 of the Securities Exchange Act of 1934 (15 U.S.C. Section 781), or any subsidiary of such a corporation.

A business soliciting exclusively the sale of telephone answering services, provided that the telephone answering services will be supplied by the solicitor.

A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission under the Commodity Exchange Act (7 U.S.C. Section 1 et seq.) and the registration or license has not expired or been suspended or revoked.

A person soliciting the sale of food or produce if the solicitation neither intends to result in, or actually results in, a sale which costs the purchaser in excess of One Hundred Dollars ($100.00).

A person soliciting business from prospective consumers who have an established business relationship with, or who have previously purchased from, the business enterprise for which the solicitor is calling, if the solicitor is operating under the same exact business name.

A person who has been operating, for at least one (1) year, a retail business establishment under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis:

Either products are displayed and offered for sale, or services are offered for sale and provided at the business establishment; and

A majority of the seller’s business involves the buyer obtaining such products or services at the seller’s location.

Any telephone marketing service company which provides telemarketing sales services under contract to sellers and has been operating continuously for at least five (5) years under the same business name and seventy-five percent (75%) of its contracts are performed on behalf of persons exempted from Sections 77-3-601 through 77-3-619.

HISTORY: Laws, 1993, ch. 538, § 5, eff from and after July 1, 1993.

Federal Aspects—

Tax-exempt charitable organizations under Internal Revenue Service, see 26 USCS § 501.

§ 77-3-611. Attorney General to investigate violations; actions for civil penalties, injunction, and other relief; stipulated penalties; waiver of penalty upon restitution, reimbursement or payment of damages.

The Attorney General shall investigate any complaints received concerning violations of Sections 77-3-601 through 77-3-619. If, after investigating any complaint, the Attorney General finds that there has been a violation of Sections 77-3-601 through 77-3-619, the Attorney General may bring an action to impose a civil penalty and to seek other relief, including injunctive relief, as the court deems appropriate against the telephone solicitor. The civil penalty shall not exceed Ten Thousand Dollars ($10,000.00) per violation and shall be deposited in the State General Fund, unallocated. This civil penalty may be recovered in any action brought under Sections 77-3-601 through 77-3-619 by the Attorney General. Alternatively, the Attorney General may terminate any investigation or action upon agreement by the person to pay a stipulated civil penalty. The Attorney General or the court may waive any civil penalty if the person has previously made full restitution or reimbursement or has paid actual damages to the consumers who have been injured by the violation.

HISTORY: Laws, 1993, ch. 538, § 6, eff from and after July 1, 1993.

§ 77-3-613. Burden of proving exemption or exemption from definition.

In any civil proceeding alleging a violation of Sections 77-3-601 through 77-3-619, the burden of proving an exemption or an exemption from a definition is upon the person claiming it.

HISTORY: Laws, 1993, ch. 538, § 7, eff from and after July 1, 1993.

§ 77-3-615. Attorney’s fees; costs.

  1. In any civil litigation resulting from a transaction involving a violation of Sections 77-3-601 through 77-3-619, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.
  2. The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
  3. The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
  4. Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.
  5. In any civil litigation initiated by the Attorney General, the court may award to the prevailing party reasonable attorney’s fees and costs if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party, or if the court finds bad faith on the part of the losing party.

HISTORY: Laws, 1993, ch. 538, § 8, eff from and after July 1, 1993.

§ 77-3-617. Telecommunications companies to inform customers of provisions of law.

The Attorney General shall by rule ensure that telecommunications companies inform their customers of the provisions of Sections 77-3-601 through 77-3-619. The notification may be made by:

Annual inserts in the billing statements mailed to customers; and

Conspicuous publication of the notice in the consumer information pages of the local telephone directories.

HISTORY: Laws, 1993, ch. 538, § 9, eff from and after July 1, 1993.

§ 77-3-619. Attorney General may issue rules and regulations to carry out provisions of law.

The Attorney General is authorized to issue any necessary rules and regulations in order to carry out the provisions of Sections 77-3-601 through 77-3-619.

HISTORY: Laws, 1993, ch. 538, § 10, eff from and after July 1, 1993.

Article 15. Mississippi Telephone Solicitation Act.

§ 77-3-701. Short title

This article shall be known and may be cited as the “Mississippi Telephone Solicitation Act.”

HISTORY: Laws, 2003, ch. 478, § 1; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 1; reenacted without change, Laws, 2006, ch. 367, § 1; reenacted without change, Laws, 2010, ch. 324, § 1; reenacted without change, Laws, 2013, ch. 322, § 1; reenacted without change, Laws, 2017, ch. 312, § 1, eff from and after July 1, 2017.

Editor's Notes —

Laws of 2003, ch. 478, § 20, provides as follows:

“SECTION 20. If any section, paragraph, sentence, phrase or any part of this article shall be held invalid or unconstitutional, such holding shall not affect any other section, paragraph, sentence, clause, phrase or part of this article which is not in and of itself invalid or unconstitutional. Moreover, if the application of this article, or any portion of it, to any person or circumstance is held invalid, the invalidity shall not affect the application of this article to other persons or circumstances which can be given effect without the invalid provision or application.”

Laws of 2003, ch. 478, § 21, provides as follows:

“SECTION 21. The provisions of Sections 77-3-701 through 77-3-737 shall supersede any other act or provision of law to the contrary, and they shall be codified as a new article within Chapter 3, Title 77, Mississippi Code of 1972.”

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

Cross References—

A violation of the Caller ID Anti-spoofing Act ( §77-3-801 et seq.) is a violation of this article, see §77-3-809.

§ 77-3-703. Legislative findings

  1. The use of the telephone to make all types of solicitations to consumers is pervasive. This article gives consumers a tool by which to object to telemarketing calls and text messages, as these communications can amount to a nuisance, an invasion of privacy, and can create a health and safety risk for certain consumers who maintain their phone service primarily for emergency medical situations.
  2. Any calls made for political purposes shall be governed by Section 23-15-875.

HISTORY: Laws, 2003, ch. 478, § 2; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 2; reenacted without change, Laws, 2006, ch. 367, § 2; reenacted without change, Laws, 2010, ch. 324, § 2; reenacted without change, Laws, 2013, ch. 322, § 2; Laws, 2016, ch. 322, § 1; reenacted without change, Laws, 2017, ch. 312, § 2, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted and amended the section by adding (2).

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 amendment inserted “and text messages” in (1).

The 2017 amendment reenacted the section without change.

§ 77-3-705. Definitions.

For the purposes of this article, the following words and terms shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

“Consumer” means a person or business that receives a telephone call or text message from a telephone solicitor.

“Caller identification service” means a type of telephone service which permits a telephone subscriber to view the telephone number and name of the person or entity making an incoming telephone call or text message.

“Telephone solicitor” means any person, firm, entity, organization, partnership, association, corporation, charitable entity, or a subsidiary or affiliate thereof, who engages in any type of telephone solicitation on his or her own behalf or through representatives, independent contractors, salespersons, agents, automated dialing systems, text messaging systems, or any other machines or other individuals or systems.

“Telephone solicitation” means any voice or text message communication over the telephone line or cellular network of a consumer for the purpose of:

Encouraging the purchase or rental of, or investment in, property;

Soliciting a sale of any consumer goods or services, or an extension of credit for consumer goods or services;

Soliciting any other item of value, pecuniary or otherwise, regardless of whether a sales presentation is made; or

Soliciting a charitable contribution of money or property.

“Commission” means the Mississippi Public Service Commission.

“Doing business in this state” refers to businesses which conduct telephone solicitations from any location to consumers located in this state.

“Consumer goods or services” means any real property or any tangible or intangible personal property which is normally used for personal, family or household purposes, including, without limitation, any property intended to be attached to, or installed in, any real property, and any services related to the property.

“Established business relationship” means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a consumer, with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the consumer, which relationship is currently existing or was terminated within six (6) months of the telephone solicitation; however, the act of purchasing consumer goods or services under an extension of credit does not create an existing business relationship between the consumer and the entity extending credit to the consumer for such purchase. The term does not include the situation wherein the consumer has merely been subject to a telephone solicitation by or at the behest of the telephone solicitor within the six (6) months immediately preceding the contemplated telephone solicitation.

“Charitable organization” means any person or entity holding itself out to be established for any benevolent, educational, philanthropic, humane, scientific, patriotic, social welfare or advocacy, public health, environmental or conservation, civic or other eleemosynary purpose or for the benefit of law enforcement personnel, firefighters, or any other persons who protect the public safety, or for any other purpose where a charitable appeal is the basis of the solicitation.

“Sales presentation” means attempting to obtain something of value, pecuniary or otherwise, regardless of whether consideration is or is expected to be exchanged.

HISTORY: Laws, 2003, ch. 478, § 3; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 3; reenacted without change, Laws, 2006, ch. 367, § 3; reenacted without change, Laws, 2010, ch. 324, § 3; reenacted without change, Laws, 2013, ch. 322, § 3; Laws, 2016, ch. 322, § 2; reenacted without change, Laws, 2017, ch. 312, § 3, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 1, eff from and after July 1, 2019.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2016 rewrote (a), which read: “ ‘Consumer’ means a person to whom is assigned in the State of Mississippi a residential telephone line and corresponding telephone number, who uses the residential line primarily for residential purposes”; added “or text message” at the end of (b); and inserted “text messaging systems” and “any other” near the end of (c).

The 2017 amendment reenacted the section without change.

The 2019 amendment rewrote (a), which read: “‘Consumer’ means an actual or prospective purchaser, lessee or recipient of consumer goods or services”; in (d), inserted “or text message” and “or cellular network” in the introductory paragraph, and added (iii) and (iv) and made related changes; and added (j).

§ 77-3-707. Use of the “no-calls” database by telephone solicitors mandatory.

  1. Except as otherwise provided pursuant to Section 77-3-709 or 77-3-711, a telephone solicitor may not make or cause to be made any telephone solicitation to any consumer in this state unless the telephone solicitor has purchased the “no-calls” database from the commission or the entity under contract with the commission.
  2. Except as otherwise provided pursuant to Section 77-3-709 or 77-3-711, a telephone solicitor may not make or cause to be made any telephone solicitation to any consumer in this state who has given notice to the commission, or the entity under contract with the commission, of his or her objection to receiving telephone solicitations.
  3. The commission, or an entity under contract with the commission, shall establish and operate a “no-calls” database composed of a list of telephone numbers of consumers who have given notice of their objection to receiving telephone solicitations. The “no-calls” database may be operated by the commission or by another entity under contract with the commission.
  4. Each local exchange company and each competing local exchange carrier shall provide written notification on a semiannual basis to each of its consumers of the opportunity to provide notification to the commission, or the entity under contract with the commission, that the consumer objects to receiving telephone solicitations. The notification must be disseminated at the option of the carrier, by television, radio or newspaper advertisements, written correspondence, bill inserts or messages, a publication in the consumer information pages of the local telephone directory, or any other method not expressly prohibited by the commission.
  5. A telephone solicitor may not violate the Caller ID Anti-Spoofing Act in Section 77-3-801 et seq., and if in violation of such act, he shall also be in violation of this article. In addition to any remedies or penalties otherwise provided by law, such telephone solicitor shall be subject to any remedies or penalties available for a violation of this article.

HISTORY: Laws, 2003, ch. 478, § 4; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 4; reenacted without change, Laws, 2006, ch. 367, § 4; reenacted without change, Laws, 2010, ch. 324, § 4; reenacted without change, Laws, 2013, ch. 322, § 4; reenacted without change, Laws, 2017, ch. 312, § 4, eff from and after July 1, 2017; Laws, 2019, ch. 487, § 3, eff from and after July 1, 2019.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

The 2019 amendment added (5).

§ 77-3-709. Commission’s discretion to exempt some telephone solicitors from purchase and use of no-calls database.

The commission, in its discretion, may allow telephone solicitors to make telephone solicitations without requiring them to purchase the “no-calls” database, and regardless of whether a telephone solicitation may be made to a consumer who has given notice of his objection to receiving such solicitations, provided that it adopts a written policy incorporating the following criteria:

The telephone solicitor must demonstrate to the commission that its proposed telephone solicitation is reasonably related to an established business relationship as defined in Section 77-3-705(h), or is being made in response to an invitation or notice from a consumer which clearly signifies that he is open to a contact being initiated;

The telephone solicitation is to be made by a person or entity for the purpose of soliciting a contribution or donation to a bona fide nonprofit corporation, regardless of whether consumer goods or services will be provided to the consumer in return for the contribution or donation; or

The consumer will not be telephoned for a telephone solicitation as defined in Section 77-3-705(d), but he will be telephoned for a bona fide religious or charitable purpose, including an invitation to attend an event or a request for a contribution or donation.

In all cases, the telephone solicitor must demonstrate that it will not use an automated dialing system or a method that will block or otherwise circumvent the consumer’s use of a caller identification service.

In making its determination of whether to allow a telephone solicitation to be made under the policy which will include the limitations set forth in this section, the commission shall exercise due care in investigating previous conduct of the telephone solicitor seeking such authority. The commission may deny any telephone solicitor the privilege of making telephone solicitations under this section, notwithstanding that any of the criteria set forth in this section have been met.

HISTORY: Laws, 2003, ch. 478, § 5; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 5; reenacted without change, Laws, 2006, ch. 367, § 5; reenacted without change, Laws, 2010, ch. 324, § 5; reenacted without change, Laws, 2013, ch. 322, § 5; reenacted without change, Laws, 2017, ch. 312, § 5, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-711. Exempt categories.

The provisions of this article shall not apply to:

A person soliciting:

Who does not make the major sales presentation during the telephone solicitation;

Without the intent to complete or obtain provisional acceptance of a sale, a charitable contribution, or the payment of some other item of value, pecuniary or otherwise, during the telephone solicitation; or

Without the intent to complete, and who does not complete, the sales presentation during the telephone solicitation, but who completes the sales presentation at a later face-to-face meeting between the person soliciting and the prospective purchaser or consumer.

A person who is a licensee under Chapter 35, Title 73, Mississippi Code of 1972, who is a resident of the State of Mississippi, and whose telephone solicitation is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent or leasing real estate in connection with his real estate license and not in conjunction with any other offer.

A motor vehicle dealer as that term is defined in Section 63-17-55, who is a resident of the State of Mississippi and who maintains a current motor vehicle dealer’s license issued by the Mississippi Motor Vehicle Commission, whose telephone solicitation is for the sole purpose of selling, offering to sell, soliciting or advertising the sale of motor vehicles in connection with his motor vehicle dealer’s license and not in conjunction with any other offer.

An agent as that term is defined in Section 83-17-1 whose telephone solicitation is for the sole purpose of soliciting, consulting, advising, or adjusting in the business of insurance.

A broker-dealer, agent, or investment advisor registered under Chapter 71, Title 75, Mississippi Code of 1972, whose telephone solicitation is for the sole purpose of effecting or attempting to effect the purchase or sale of securities or has the purpose of providing or seeking to provide investment or financial advice.

A person calling on behalf of a charitable organization which is registered under Chapter 11, Title 79, Mississippi Code of 1972, whose telephone solicitation is for the sole purpose of soliciting for the charitable organization and who receives no compensation for his activities on behalf of the organization.

A person calling on behalf of a newspaper of general circulation, whose telephone solicitation is for the sole purpose of soliciting a subscription to the newspaper from, or soliciting the purchase of advertising by, the consumer.

A person calling on behalf of any supervised financial institution or parent, subsidiary or affiliate thereof. As used in this section, “supervised financial institution” means any commercial bank, trust company, savings and loan association, mutual savings bank, credit union, industrial loan company, small loan company, consumer finance lender, commercial finance lender or insurer, provided that the institution has a physical office located in the State of Mississippi and is subject to supervision by an official or agency of the State of Mississippi or of the United States.

A person calling on behalf of a funeral establishment licensed under Section 73-11-41, cemetery or monument dealer, if the sole purpose of the telephone solicitation relates to services provided by the funeral or death related establishments in the course of its ordinary business.

Any telephone solicitor who solicits a consumer with whom he has an established business relationship.

HISTORY: Laws, 2003, ch. 478, § 6; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 6; reenacted without change, Laws, 2006, ch. 367, § 6; reenacted without change, Laws, 2010, ch. 324, § 6; reenacted without change, Laws, 2013, ch. 322, § 6; reenacted without change, Laws, 2017, ch. 312, § 6, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 2, eff from and after July 1, 2019.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted and amended the section by inserting “cemetery or monument dealer,” and substituting “funeral or death related establishments” for “funeral establishment” in (i).

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

The 2019 amendment inserted “a charitable contribution, or the payment of some other item of value, pecuniary or otherwise” in (a)(ii).

§ 77-3-713. Registration of telephone solicitors mandatory.

All telephone solicitors must register with the commission before conducting any telephone solicitations in the State of Mississippi.

HISTORY: Laws, 2003, ch. 478, § 7; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 7; reenacted without change, Laws, 2006, ch. 367, § 7; reenacted without change, Laws, 2010, ch. 324, § 7; reenacted without change, Laws, 2013, ch. 322, § 7; reenacted without change, Laws, 2017, ch. 312, § 7, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-715. Regulatory powers of Public Service Commission.

The commission may promulgate rules and regulations necessary to effectuate this article, including, but not limited to, the following:

The methods by which consumers may give notice to the commission or its contractor of their objection to receive solicitations or revocation of the notice;

The methods by which a notice of objection becomes effective and the effect of a change of telephone number on the notice;

The methods by which objections and revocations are collected and added to the database;

The methods by which a person or entity desiring to make telephone solicitations may obtain access to the database as required to avoid calling the telephone number of consumers included in the database;

The process by which the database is updated, and the frequency of updates;

The process by which telephone solicitors must register with the commission for the purpose of conducting telephonic solicitations in the state;

The establishment of fees to be charged by the commission or its contractor to telephone solicitors for access to or for paper or electronic copies of the database on an annual basis;

The establishment of a written policy which clearly articulates the circumstances under which the commission, in its discretion, may allow exceptions to the provisions of this article pursuant to Section 77-3-703; and

All other matters relating to the database that the commission deems necessary.

HISTORY: Laws, 2003, ch. 478, § 8; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 8; reenacted without change, Laws, 2006, ch. 367, § 8; reenacted without change, Laws, 2010, ch. 324, § 8; reenacted without change, Laws, 2013, ch. 322, § 8; reenacted without change, Laws, 2017, ch. 312, § 8, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-717. Inclusion in no-calls database of Mississippi part of any Federal Trade Commission national database.

If the Federal Trade Commission establishes a single national database of telephone numbers of consumers who object to receiving telephone solicitations, the commission must include the portion of the single national database that relates to the State of Mississippi in the database established under this article. Likewise, the commission shall make available the state’s database to the Federal Trade Commission for inclusion in the national database.

HISTORY: Laws, 2003, ch. 478, § 9; reenacted and amended, Laws, 2005, 2nd Ex Sess, ch. 62, § 9; reenacted without change, Laws, 2006, ch. 367, § 9; reenacted without change, Laws, 2010, ch. 324, § 9; reenacted without change, Laws, 2013, ch. 322, § 9; reenacted without change, Laws, 2017, ch. 312, § 9, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted and amended the section by adding the last sentence.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-719. Nondisclosure of database.

Information contained in the database established under this article may be used and accessed only for the purpose of compliance with this article and shall not be otherwise subject to public inspection or disclosure.

HISTORY: Laws, 2003, ch. 478, § 10; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 10; reenacted without change, Laws, 2006, ch. 367, § 10; reenacted without change, Laws, 2010, ch. 324, § 10; reenacted without change, Laws, 2013, ch. 322, § 10; reenacted without change, Laws, 2017, ch. 312, § 10, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-721. Fees; funding of expenses of agency; deposit of user charges and fees authorized under this section into State General Fund [Repealed effective July 1, 2021]

All fees collected under the provisions of this article shall be deposited into a special fund which is created in the State Treasury to be expended by the commission for the implementation and administration of this article. From and after July 1, 2016, the expenses of this agency shall be defrayed by appropriation from the State General Fund and all user charges and fees authorized under this section shall be deposited into the State General Fund as authorized by law and as determined by the State Fiscal Officer.

This section shall stand repealed July 1, 2021.

HISTORY: Laws, 2003, ch. 478, § 11; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 11; reenacted without change, Laws, 2006, ch. 367, § 11; reenacted without change, Laws, 2010, ch. 324, § 11; reenacted without change, Laws, 2013, ch. 322, § 11; reenacted without change, Laws, 2017, ch. 312, § 11; Laws, 2017, 1st Ex Sess, ch. 7, § 39, eff from and after passage (approved June 23, 2017).

Editor’s Notes —

This section was amended by § 39 of Chapter 7, Laws of 2017, 1st Extraordinary Session, effective June 23, 2017, which added the last paragraph repealing the section effective July 1, 2020. The section is also included within the span of sections repealed by §77-3-737, which was amended by § 19 of Chapter 312, Laws of 2017, effective July 1, 2017, to extend the date of the repealer to July 1, 2021. This section is subject to both repealers.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The first 2017 amendment (ch. 312), reenacted the section without change.

The second 2017 amendment (ch. 7, 1st Ex Sess), effective June 23, 2017, in the first paragraph, deleted the former last two sentences, which read: “At the end of each fiscal year, earned interest and unexpended monies remaining in the fund may not revert to any other fund of the state, but shall remain available for appropriations to administer this article. The Legislature shall appropriate annually from the fund the amount necessary for the administration of this article to the commission” and added the current last sentence; and added the last paragraph.

§ 77-3-723. Rules for authorized calls.

  1. Any person or entity who makes an authorized telephone solicitation to a consumer in this state shall announce clearly, at the beginning of each call, his or her name, the company he or she represents and the purpose of the call. Such calls may only be made between the hours of 8:00 a.m. and 8:00 p.m. Central Standard Time. No telephone solicitations may be made on a Sunday. For purposes of this provision, an “authorized telephone solicitation” means a solicitation that is made: (a) to a consumer who is not listed on the most current “no-calls” database; (b) by a telephone solicitor who has been authorized to make such solicitations under the provisions of Section 77-3-709; or (c) by a telephone solicitor who is exempt from this article under the provisions of Section 77-3-711.
  2. A person or entity who makes a telephone solicitation to a consumer in this state may not utilize knowingly any method that blocks or otherwise circumvents the consumer’s use of a caller identification service, nor may the person or entity use an automated dialing system or any like system that uses a recorded voice message to communicate with the consumer unless the person or entity has an established business relationship with the consumer and uses the recorded voice message to inform the consumer about a new product or service.

HISTORY: Laws, 2003, ch. 478, § 12; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 12; reenacted without change, Laws, 2006, ch. 367, § 12; reenacted without change, Laws, 2010, ch. 324, § 12; reenacted without change, Laws, 2013, ch. 322, § 12; reenacted without change, Laws, 2017, ch. 312, § 12, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-725. Violations; hearings; penalties.

The commission may investigate alleged violations and initiate proceedings relative to a violation of this article or any rules and regulations promulgated pursuant to this article. Such proceedings include, without limitation, proceedings to issue a cease and desist order, and to issue an order imposing a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation. The commission shall afford an opportunity for a fair hearing to the alleged violator(s) after giving written notice of the time and place for said hearing. Failure to appear at any such hearing may result in the commission finding the alleged violator(s) liable by default. Any telephone solicitor found to have violated this article, pursuant to a hearing or by default, may be subject to a civil penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation to be assessed and collected by the commission. Each telephonic communication shall constitute a separate violation.

All penalties collected by the commission shall be deposited in the special fund created under Section 77-3-721 for the administration of this article.

The commission may issue subpoenas, require the production of relevant documents, administer oaths, conduct hearings, and do all things necessary in the course of investigating, determining and adjudicating an alleged violation.

The remedies, duties, prohibitions and penalties set forth under this article shall not be exclusive and shall be in addition to all other causes of action, remedies and penalties provided by law, including, but not limited to, the penalties provided by Section 77-1-53.

HISTORY: Laws, 2003, ch. 478, § 13; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 13; reenacted without change, Laws, 2006, ch. 367, § 13; reenacted without change, Laws, 2010, ch. 324, § 13; reenacted without change, Laws, 2013, ch. 322, § 13; reenacted without change, Laws, 2017, ch. 312, § 13, eff from and after July 1, 2017; Laws, 2019, ch. 471, § 3, eff from and after July 1, 2019.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

The 2019 amendment substituted “Ten Thousand Dollars ($10,000.00)” for “Five Thousand Dollars ($5,000.00)” twice in the first paragraph.

§ 77-3-727. Consumer complaints.

Any person who has received a telephone solicitation in violation of this article, or any rules and regulations promulgated pursuant to this article, may file a complaint with the commission. The complaint will be processed pursuant to complaint procedures established by the commission.

HISTORY: Laws, 2003, ch. 478, § 14; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 14; reenacted without change, Laws, 2006, ch. 367, § 14; reenacted without change, Laws, 2010, ch. 324, § 14; reenacted without change, Laws, 2013, ch. 322, § 14; reenacted without change, Laws, 2017, ch. 312, § 14, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-729. Defenses.

It shall be a defense in any action or proceeding brought under Section 77-3-725 or 77-3-727 that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of this article.

HISTORY: Laws, 2003, ch. 478, § 15; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 15; reenacted without change, Laws, 2006, ch. 367, § 15; reenacted without change, Laws, 2010, ch. 324, § 15; reenacted without change, Laws, 2013, ch. 322, § 15; reenacted without change, Laws, 2017, ch. 312, § 15, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-731. Commission granted personal jurisdiction over resident and nonresident telephone solicitors.

The commission is granted personal jurisdiction over any telephone solicitor, whether a resident or a nonresident, notwithstanding that telephone solicitors are not deemed to be a public utility, for the purpose of administering this article. The commission is granted personal jurisdiction over any nonresident telephone solicitor, its executor, administrator, receiver, trustee or any other appointed representative of such nonresident as to an action or proceeding authorized by this article or any rules and regulations promulgated pursuant to this article as authorized by Section 13-3-57, and also upon any nonresident, his or her executor, administrator, receiver, trustee or any other appointed representative of such nonresident who has qualified under the laws of this state to do business herein. Service of summons and process upon the alleged violator of this article shall be had or made as is provided by the Mississippi Rules of Civil Procedure.

HISTORY: Laws, 2003, ch. 478, § 16; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 16; reenacted without change, Laws, 2006, ch. 367, § 16; reenacted without change, Laws, 2010, ch. 324, § 16; reenacted without change, Laws, 2013, ch. 322, § 16; reenacted without change, Laws, 2017, ch. 312, § 16, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-733. Right of appeal.

Any party aggrieved by any final order of the commission pursuant to this article, or any rules and regulations promulgated pursuant to this article, shall have the right of appeal to the Chancery Court of Hinds County, Mississippi, First Judicial District.

HISTORY: Laws, 2003, ch. 478, § 17; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 17; reenacted without change, Laws, 2006, ch. 367, § 17; reenacted without change, Laws, 2010, ch. 324, § 17; reenacted without change, Laws, 2013, ch. 322, § 17; reenacted without change, Laws, 2017, ch. 312, § 17, eff from and after July 1, 2017.

Editor’s Notes —

For repeal of this section, see §77-3-737.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-735. Service providers certificated by commission not liable for violations of others.

No provider of telephonic caller identification service, local exchange telephone company or long distance company certificated by the commission may be held liable for violations of this article committed by other persons or entities.

HISTORY: Laws, 2003, ch. 478, § 18; reenacted without change, Laws, 2005, 2nd Ex Sess, ch. 62, § 18; reenacted without change, Laws, 2006, ch. 367, § 18; reenacted without change, Laws, 2010, ch. 324, § 18; reenacted without change, Laws, 2013, ch. 322, § 18; reenacted without change, Laws, 2017, ch. 312, § 18, eff from and after July 1, 2017.

Amendment Notes —

The 2005 amendment, 2nd Ex Sess, ch. 62, reenacted the section without change.

The 2006 amendment reenacted the section without change.

The 2010 amendment reenacted the section without change.

The 2013 amendment reenacted the section without change.

The 2017 amendment reenacted the section without change.

§ 77-3-737. Repealed.

Repealed by Laws, 2019, ch. 471, § 4, eff from and after July 1, 2019.

§77-3-737. [Laws, 2003, ch. 478, § 19; Laws, 2005, 2nd Ex Sess, ch. 62, § 19; reenacted without change, Laws, 2006, ch. 367, § 19; Laws, 2010, ch. 324, § 19; Laws, 2013, ch. 322, § 19; reenacted and amended, Laws, 2017, ch. 312, § 19, eff from and after July 1, 2017.]

Article 17. Caller ID Anti-spoofing Act.

§ 77-3-801. Short title.

This article may be cited as the “Caller ID Anti-Spoofing Act.”

HISTORY: Laws, 2010, ch. 326, § 1, eff from and after July 1, 2010.

Cross References— A violation of the Mississippi Telephone Solicitation Act ( §77-3-701 et seq.) is a violation of this article, see §77-3-707.

JUDICIAL DECISIONS

1-2. [Reserved for future use.]

3. Preemption by federal law.

1-2. [Reserved for future use.]

3. Preemption by federal law.

In light of 47 USCS § 227(e)(1)’s carefully-drafted language and legislative history, and in spite of presumption against preemption that attaches to State’s exercise of its police power, there is inherent federal objective in Truth in Caller ID Act of 2009 to protect non-harmful spoofing; Mississippi Caller ID Anti-Spoofing Act’s proscription of non-harmful spoofing (spoofing done without intent to defraud, cause harm, or wrongfully obtain anything of value) frustrates this federal objective and is, therefore, conflict-preempted. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

Because court held that Mississippi Caller ID Anti-Spoofing Act was conflict-preempted by Truth in Caller ID Act of 2009, court did not need to consider its validity under dormant Commerce Clause or First Amendment. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

§ 77-3-803. Definitions.

As used in this article:

“Automatic number identification” means a system that identifies the billing account for a call and includes an enhanced 911 service capability that enables the automatic display of the ten-digit number used to place a 911 call from a wire line, wireless, interconnected VoIP or nontraditional telephone service.

“Caller identification information” means information provided by a caller identification service regarding the telephone number, or other origination information, of a call or facsimile transmission made using a telecommunications service or an interconnected VoIP service, or of a text message sent using a text-messaging service.

“Caller identification service” means any service or device designed to provide the user of the service or device with the telephone number of, or other information regarding the origination of, a call made using a telecommunications service or interconnected VoIP service. The term includes automatic number identification services.

“Interconnected VoIP service” means an interconnected Voice over Internet Protocol service that:

Enables real-time, two-way voice communications;

Requires a broadband internet connection from the user’s location;

Requires internet protocol-compatible customer premises equipment; and

Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.

“Place of primary use” means the street address where a subscriber’s use of a telecommunications service or interconnected VoIP service primarily occurs, which shall be:

The residential street address or the primary business street address of the subscriber or, in the case of a subscriber of interconnected VoIP service, the subscriber’s registered location; and

Within the licensed service area of the provider.

“Provider” means a person or entity that offers telecommunications service or interconnected VoIP service.

“Registered location” means the most recent information obtained by an interconnected VoIP service provider that identifies the physical location of an end user.

“Subscriber” means a person:

Who subscribes to a caller identification service in connection with a telecommunications service or an interconnected VoIP service; and

Whose place of primary use for the service described in paragraph (h)(i) is located in Mississippi.

“Telecommunications service” means the offering of telecommunications for a fee directly to the public, or to classes of users so as to be effectively available directly to the public, regardless of the facilities used.

HISTORY: Laws, 2010, ch. 326, § 2, eff from and after July 1, 2010; Laws, 2019, ch. 487, § 1, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section to delete definitions for “call,” “caller,” “enter,” “false information,” and “telephone caller identification system” and add definitions for “automatic number identification,” “caller identification information,” “caller identification service,” “interconnected VoIP service,” “place of primary use,” “provider,” “registered location,” “subscriber,” and “telecommunications service.”

§ 77-3-805. Causing caller identification service to transmit misleading or inaccurate caller identification information to subscriber prohibited.

Except as provided in Section 77-3-807, a person shall not, in connection with any telecommunications service or interconnected VOIP service, knowingly and with the intent to defraud or cause harm to another person or to wrongfully obtain anything of value, cause any caller identification service to transmit misleading or inaccurate caller identification information to a subscriber.

HISTORY: Laws, 2010, ch. 326, § 3, eff from and after July 1, 2010; Laws, 2019, ch. 487, § 2, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment rewrote the section, which read: “(1) A person may not enter or cause to be entered false information into a telephone caller identification system with the intent to deceive, defraud or mislead the recipient of a call. (2) A person may not place a call knowing that false information was entered into the telephone caller identification system with the intent to deceive, defraud or mislead the recipient of the call.”

§ 77-3-807. Exceptions.

This article does not apply to:

The blocking of caller identification information.

Any law enforcement agency of the federal, state, county or municipal government.

Any intelligence or security agency of the federal government.

A telecommunications, broadband or voice-over-Internet service provider that is acting solely as an intermediary for the transmission of telephone service between the caller and the recipient.

HISTORY: Laws, 2010, ch. 326, § 4, eff from and after July 1, 2010.

§ 77-3-809. Penalties.

  1. Any person who violates this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than One Thousand Dollars ($1,000.00) or shall be imprisoned in the county jail not exceeding one (1) year, or both.
  2. Any violation of this article constitutes an unlawful trade practice under Section 75-24-5 and, in addition to any remedies or penalties set forth in this article, shall be subject to any remedies or penalties available for a violation of that statute.
  3. Any violation of this article constitutes a violation of the Mississippi Telephone Solicitation Act, Section 77-3-701 et seq., and in addition to any remedies or penalties provided in this article, shall be subject to any remedies or penalties available for a violation of that act.

HISTORY: Laws, 2010, ch. 326, § 5, eff from and after July 1, 2010; Laws, 2019, ch. 487, § 4, eff from and after July 1, 2019.

Amendment Notes —

The 2019 amendment added (3).

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Chapter 5. Electric Power

Article 1. Mississippi Rural Electrification Authority.

§ 77-5-1. Short title.

This article may be cited as the “State Rural Electrification Authority Law.”

HISTORY: Codes, 1942, § 5500; Laws, 1936, ch. 183.

Cross References —

Mississippi Energy Research Center, see §57-55-15.

RESEARCH REFERENCES

Law Reviews.

1982 Mississippi Supreme Court Review: Administrative Law: Intervention by Mississippi’s Attorney General on behalf of the public. 53 Miss. L. J. 123.

§ 77-5-3. Definitions.

The following terms, whenever used in this article, shall have the following meanings, unless a different meaning clearly appears from the context:

“Authority” shall mean the corporation created by this article.

“Board” shall mean the board of directors of the authority.

“Bonds” shall mean and include negotiable bonds, interim certificates or receipts, notes, debentures and all other evidences of indebtedness either issued or the payment thereof assumed by the authority.

“Acquire” shall mean and include construct, acquire by purchase, lease, devise, gift or the exercise of the power of eminent domain, or other mode of acquisition.

“Person” or “inhabitant” shall mean and include natural persons, firms, associations, corporations, business trusts, partnerships and bodies politic.

“Energy” shall mean and include any and all electric energy, no matter how or where generated or produced.

“System” shall mean and include any plant, works, system facilities, or properties, or parts thereof, together with all appurtenances thereto, used or useful in connection with the generation, production, transmission or distribution of energy.

“State” shall mean the State of Mississippi.

“Municipality” shall mean any incorporated city, town or village of the state.

“Federal agency” shall mean and include the United States of America, the President of the United States of America, Tennessee Valley Authority, the Federal Emergency Administrator of Public Works, the Administrator of the Rural Electrification Administration, and any and all other authorities, agencies, and instrumentalities of the United States of America, heretofore or hereafter created.

“Improve” shall mean and include construct, reconstruct, improve, repair, extend, enlarge or alter.

“Service” shall mean and include the sale or other disposition of energy at the lowest cost consistent with sound economy, public advantage and the prudent conduct of the business of the authority.

HISTORY: Codes, 1942, § 5501; Laws, 1936, ch. 183.

§ 77-5-5. Mississippi Rural Electrification Authority created.

A corporation, to be known as the “Mississippi Rural Electrification Authority,” is hereby created as an agency of the state. Said authority shall be a public corporation in perpetuity under its corporate name, and shall under that name be a body politic and corporate.

HISTORY: Codes, 1942, § 5502; Laws, 1936, ch. 183.

RESEARCH REFERENCES

ALR.

Liability of electric utility to nonpatron for interruption or failure of power. 54 A.L.R.4th 667.

Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service. 46 A.L.R.5th 423.

CJS.

29 C.J.S., Electricity §§ 46-54.

§ 77-5-7. Board of directors of authority.

The authority shall have a board of directors. The powers of the authority shall be vested in and exercised by a majority of the members of the board then in office.

HISTORY: Codes, 1942, § 5503; Laws, 1936, ch. 183.

§ 77-5-9. Number, appointment, removal and terms of board of directors.

The board shall consist of three members who shall be appointed by the governor of the state, one (1) each from the three (3) supreme court districts of the state. The first appointment of members of the board shall be made by the governor by April 10, 1936. The term of office of the members of the board first appointed shall be one (1), two (2) and three (3) years, respectively, dating from the first day of the month in which the last of such appointments is made, and thereafter the term of office of the directors shall be three years. Directors shall hold office until their successors are appointed and qualify, and directors shall be eligible for reappointment. An appointment to fill a vacancy shall be for the unexpired term. The governor may remove any member of the board within the term for which such member shall have been appointed, giving to such member a copy of the charges against him and an opportunity to be heard in his defense.

HISTORY: Codes, 1942, § 5504; Laws, 1936, ch. 183.

Cross References —

Powers and duties of governor, generally, see §7-1-5.

§ 77-5-11. Organization of board; officers.

Promptly after appointment the board shall meet to organize. At such meeting and at the first meeting in each year thereafter, the members shall choose from their number a president and a secretary.

HISTORY: Codes, 1942, § 5505; Laws, 1936, ch. 183.

§ 77-5-13. Compensation of members of board.

The members of the board shall not be entitled to compensation for their services but they shall be entitled to reimbursement for all expenses incurred in connection with the performance of their duties, and to an honorarium of not more than six hundred dollars ($ 600.00) per year as the governor may decide, payable monthly.

HISTORY: Codes, 1942, § 5506; Laws, 1936, ch. 183.

§ 77-5-15. Members of board shall not hold full time state office.

The members of the board shall not hold any full time salaried public office under the state.

HISTORY: Codes, 1942, § 5507; Laws, 1936, ch. 183.

§ 77-5-17. Powers of board.

The board shall have power to do all things necessary or convenient in conducting the business of the authority, including, but not limited to:

  1. The power to adopt and amend by-laws for the management and regulation of its affairs and the business in which it is engaged;
  2. To use, with the consent of a municipality, the agents, employees or facilities of such municipality and to provide for payment of the agreed proportion of the costs therefor;
  3. To appoint officers, agents and employees and to fix their compensation;
  4. To inquire into any matter relating to the affairs of the authority, to compel by subpoena the attendance of witnesses and the production of books and papers material to any such inquiry, to administer oaths to witnesses and to examine witnesses and such books and papers;
  5. To appoint an advisory board to assist in the formation of proper policies in respect to the business of the authority;
  6. To execute instruments;
  7. To delegate to one or more of its members, or to its agents and employees, such powers and duties as it may deem proper.

HISTORY: Codes, 1942, § 5508; Laws, 1936, ch. 183.

§ 77-5-19. Corporate purpose of the authority.

The corporate purpose of the authority is to encourage and promote the fullest possible use of energy by all of the inhabitants of the state by rendering service to said inhabitants, to whom energy is not available or, in the opinion of the board, is not available at reasonable rates.

HISTORY: Codes, 1942, § 5509; Laws, 1936, ch. 183.

§ 77-5-21. General grant of powers to authority.

The authority is hereby vested with all powers necessary or requisite for the accomplishment of its corporate purpose and capable of being delegated by the legislature of this state. No enumeration of particular powers granted shall be construed to impair any general grant of power herein contained, or to limit any such grant to a power or powers of the same class or classes as those so enumerated.

HISTORY: Codes, 1942, § 5510; Laws, 1936, ch. 183.

§ 77-5-23. Grant of specific powers to authority.

The authority shall have power:

To sue and be sued.

To have a seal and alter the same at pleasure.

To render service to the inhabitants of the state and, by contract or contracts with any person, federal agency or municipality or by its own employees, to acquire, own, operate, maintain and improve a system or systems.

To acquire, hold and dispose of property, real and personal, tangible and intangible, or interests therein, in its own name, subject to mortgages or other liens or otherwise and to pay therefor in cash or on credit, and to secure and procure payment of all or any part of the purchase price thereof on such terms and conditions as the board shall determine.

To cause surveys to be made of areas throughout the state for the purpose of determining the economic soundness of the acquisition of a system or systems therein, to make plans and estimates of the cost of such system or systems and in connection therewith to enter on any lands, waters and premises for the purpose of making such surveys, soundings and examinations.

To have complete control and supervision of the system or systems and to make such rules and regulations governing the rendering of service thereby as, in the judgment of the board, may be just and equitable.

To fix, maintain and collect rates and charges for service.

To use any right of way, easement or other similar property right necessary or convenient in connection with the acquisition, improvement, operation or maintenance of a system or systems, held by the state or any political subdivision thereof, provided, that the governing body of such political subdivision shall consent to such use.

To execute all instruments necessary or convenient including, but not limited to, indentures of trust, leases, and bonds.

To borrow money and issue bonds and to provide for the rights of the holders thereof.

To accept gifts or grants of money or property, real or personal, and voluntary and uncompensated services from any person, federal agency or municipality.

To condemn any land, easements, or rights of way, either on, under, or above the ground as the board may deem necessary for any of the purposes mentioned in this article, and such property or interest in such property may be so acquired whether or not the same is owned or held for public use by corporations, associations or persons having the power of eminent domain or otherwise held or used for public purposes. Such power of condemnation may be exercised in the mode or method of procedure prescribed by Chapter 27, Title 11, of the Mississippi Code of 1972, or in the mode or method of procedure prescribed by any other applicable statutory provisions now in force or hereafter enacted for the exercise of the power of eminent domain. Where condemnation proceedings become necessary the judge of the circuit court in which such proceedings are filed shall upon application of the authority and upon the deposit in the court, to the use of the person or persons lawfully entitled thereto, of such an amount as the judge may deem necessary to assure just compensation, order that the right of possession shall issue immediately or as soon and upon such terms as the judge, in his discretion, may deem proper and just. Upon application of the parties in interest, the judge may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceedings.

To make any and all contracts necessary or convenient for the full exercise of the powers herein granted, including, but not limited to, contracts with any person, federal agency, or municipality (a) for the purchase or sale of energy, (b) for the management and conduct of the business of the authority or any part thereof, and (c) for the acquisition of all or part of any system or systems. In connection with any such contract the authority shall have the power to stipulate and agree to such covenants, terms and conditions as the board may deem appropriate, including, but without limitations, covenants, terms and conditions with respect to the resale rates, financial and accounting methods, services, operation and maintenance practices, and the manner of disposing of the revenues of the system or systems conducted and operated by the authority.

To do any and all acts and things herein authorized or necessary or convenient to carry out the powers expressly given in this article under, through or by means of its own officers, agents and employees, or by contracts with any person, federal agency or municipality.

To pledge all or any part of its revenues and to mortgage or otherwise incumber all or any part of its property for the purpose of securing the payment of the principal and interest on any of its bonds or other obligations.

HISTORY: Codes, 1942, § 5511; Laws, 1936, ch. 183.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in ( l ), by substituting “Chapter 27, Title 11, of the Mississippi Code of 1972” for “Chapter 33, Title 11, of the Mississippi Code of 1972.” The Joint Committee ratified the correction at its July 22, 2010, meeting.

Cross References —

Grant of right of eminent domain to hydro-electric companies, see §11-27-41.

RESEARCH REFERENCES

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Electricity, Gas, and Steam, Forms 11-18 (rights of way and eminent domain).

CJS.

29 C.J.S., Electricity §§ 46-54.

§ 77-5-25. Operations outside of state authorized.

To the extent necessary in the judgment of the board to make effective the powers conferred by this article, the authority shall have the power to acquire, own, operate, maintain and/or improve a generating and/or transmission system or systems outside the State of Mississippi.

HISTORY: Codes, 1942, § 5512; Laws, 1936, ch. 183.

§ 77-5-27. Issuance of bonds by authority.

The authority shall have power and is hereby authorized from time to time to issue its bonds in anticipation of its revenues, for any corporate purpose. Said bonds may be authorized by resolution or resolutions of the board, and may be issued in one or more series, may bear such date or dates, mature at such time to times not exceeding twenty-five (25) years from their respective dates, bear interest at such rate or rates, not exceeding that allowed in Section 75-17-103, Mississippi Code of 1972, payable semiannually, be in such denominations, be in such form, either coupon or registered, be executed in such manner, be payable in such medium of payment, at such place or places, be subject to such terms of redemption, with or without premium, and be declared or become due before the maturity date thereof, as such resolution or resolutions may provide. Said bonds may be issued for money or property, at public or private sale for such price or prices, as the board shall determine. The interest cost to maturity of the money or property (at its value as determined by the board, the determination of which shall be conclusive) received for any issue of said bonds, shall not exceed the rate allowed in Section 75-17-103, Mississippi Code of 1972. Said bonds may be repurchased by the authority out of any available funds at a price not to exceed the principal amount thereof and accrued interest, and all bonds so repurchased shall be canceled. Pending the preparation or execution of definitive bonds, interim receipts or certificates, or temporary bonds may be delivered to the purchaser or purchasers of said bonds. Any provision of law to the contrary notwithstanding, any bonds and the interest coupons appertaining thereto, if any, issued pursuant to this article shall possess all of the qualities of negotiable instruments.

HISTORY: Codes, 1942, § 5513; Laws, 1936, ch. 183; Laws, 1982, ch. 434, § 35; Laws, 1983, ch. 541, § 43, eff from and after passage (approved April 25, 1983).

Cross References —

Law of negotiable instruments under Uniform Commercial Code, see §75-3-101.

§ 77-5-29. Validity of bonds.

Said bonds bearing the signature of officers in office on the date of the signing thereof shall be valid and binding obligations notwithstanding that before the delivery thereof and payment therefor any or all the persons whose signatures appear thereon shall have ceased to be officers. The validity of said bonds shall not be dependent on nor be affected by the validity or regularity of any proceedings relating to the acquisition or improvement of the system or systems for which said bonds are issued. The resolution or resolutions authorizing said bonds may provide that the bonds shall contain a recital that they are issued pursuant to this article, which recital shall be conclusive evidence of their validity and of the regularity of their issuance.

HISTORY: Codes, 1942, § 5514; Laws, 1936, ch. 183.

§ 77-5-31. Bonds of authority not debts of state.

No holder or holders of any bonds issued under this article shall ever have the right to compel any exercise of the taxing power of the state or of any political subdivision thereof to pay said bonds or the interest thereon. Each bond issued under this article shall recite in substance that said bond, including the interest thereon, is payable from the revenues pledged to the payment thereof, and that said bond does not constitute a debt of the state.

HISTORY: Codes, 1942, § 5515; Laws, 1936, ch. 183.

§ 77-5-33. Rates, fees and charges; application thereof.

The authority shall not be operated for gain or profit or primarily as a source of revenue to the state. The authority shall, however, prescribe and collect reasonable rates, fees or charges for the services, facilities and commodities made available by it, and shall revise such rates, fees or charges from time to time whenever necessary so that the authority shall be and always remain self-supporting, and shall not require appropriations by the state to enable it to carry out its purpose. The rates, fees, or charges prescribed shall be such as will produce revenue at least sufficient (a) to pay when due all bonds and interest thereon, for the payment of which such revenue is or shall have been pledged, charged or otherwise incumbered, including reserves therefor, and (b) to provide for all expenses of operation, maintenance or improvement of the system or systems acquired by the authority, including reserves therefor. Any surplus thereafter remaining shall be devoted solely to the reduction of rates.

HISTORY: Codes, 1942, § 5516; Laws, 1936, ch. 183.

§ 77-5-35. Pledge of state to bondholders that it will not impair rate-making power of authority.

The state does pledge to and agree with the holders of bonds issued by the authority that the state will not limit or alter the rights and powers vested in the authority to fix and collect such rates, fees and charges as may be necessary or advisable in order to produce sufficient revenue to meet all expenses of maintenance and operation of its system or systems and to fulfill the terms of any agreements made with the holders of such bonds, or in any way impair the rights and remedies of the holders of such bonds, until such bonds together with interest thereon, and interest on any unpaid installments of interest, and all costs and expenses in connection with any suits, actions or proceedings by or on behalf of such bondholders are fully paid and discharged.

HISTORY: Codes, 1942, § 5517; Laws, 1936, ch. 183.

§ 77-5-37. Security for bonds.

In connection with the issuance of bonds or in order to secure the payment of its bonds, the authority incorporated under this article shall have power:

To pledge all or any part of its revenues.

To vest in a trustee or trustees the right to enforce any covenant made to secure, to pay, or in relation to its bonds, to provide for the powers and duties of such trustee or trustees, to limit the liabilities thereof, and to provide the terms and conditions upon which the trustee or trustees or the holders of bonds or any amount or proportion of them may enforce any such covenant.

To make such covenants and to do any and all such acts and things as may be necessary or convenient or desirable in order to secure its bonds or which, in the absolute discretion of the board, tend to make the bonds more marketable notwithstanding that such covenants, acts and things may restrict or interfere with the exercise of the powers granted in this article, it being the intention hereof to give the authority power to do all things in the issuance of bonds, and for their security, that a private business corporation can do under the general laws of the state.

HISTORY: Codes, 1942, § 5518; Laws, 1936, ch. 183.

§ 77-5-39. Rights and remedies of bondholders.

In addition to all other rights and all other remedies, any holders of bonds of the authority, including a trustee for bondholders, shall have the right by mandamus or other suit, action or proceeding, at law or in equity, to enforce their rights against the authority and the board of the authority, including the right to require the authority and such board to fix and collect rates and charges adequate to carry out any agreement as to, or pledge of, the revenues produced by such rate or charges, and to require the authority and such board to carry out any other covenants and agreements with such bondholders and to perform its and their duties under this article.

HISTORY: Codes, 1942, § 5519; Laws, 1936, ch. 183.

§ 77-5-41. Moneys of the authority.

All moneys of the authority, from whatever source derived, shall be deposited in one or more banks or trust companies and, if the authority shall so require, each of such accounts shall be continuously secured by a pledge of direct obligations of the United States of America or of the State of Mississippi having an aggregate market value, exclusive of accrued interest, at all times at least equal to the balance on deposit in such account or accounts. Such securities shall either be deposited with the authority or held by a trustee or agent satisfactory to the authority. In lieu of any such pledge of such securities, said deposits may be secured by a surety bond or bonds which shall be in form, sufficiency and substance satisfactory to the authority.

HISTORY: Codes, 1942, § 5520; Laws, 1936, ch. 183.

§ 77-5-43. Assets of authority shall pass to state upon cessation of authority’s existence.

In the event that the authority shall cease to exist, all of its assets remaining after all of its obligations and liabilities have been satisfied or discharged shall pass to and become the property of the state.

HISTORY: Codes, 1942, § 5521; Laws, 1936, ch. 183.

§ 77-5-45. Authority and its property subject to taxation.

The authority and its property shall be liable for taxes and shall be taxed and assessed in the same manner and to the same extent as a privately owned utility.

HISTORY: Codes, 1942, § 5522; Laws, 1936, ch. 183.

§ 77-5-47. Right of way over certain state lands granted to associations and corporations operating under this article.

All associations or corporations formed and operating under this article are hereby authorized and empowered to construct electric lines on and over all of those lands matured in the State of Mississippi through tax sale, and also on and over unimproved sixteenth sections, and lands granted in lieu of sixteenth sections.

The right and power to construct and maintain said lines shall be during the existence of said corporation or association, and without payment to the state for said easement.

HISTORY: Codes, 1942, § 5525; Laws, 1938, ch. 249.

RESEARCH REFERENCES

Am. Jur.

9 Am. Jur. Pl & Pr Forms (Rev), Electricity, Gas, and Steam, Forms 11-18 (rights of way and eminent domain).

§ 77-5-49. Article complete in itself.

This article is complete in itself and shall be controlling. The provisions of any other law, general, special, or local, except as provided in this article, shall not limit or restrict the powers granted by this article.

HISTORY: Codes, 1942, § 5523; Laws, 1936, ch. 183.

Article 3. Power Districts.

§ 77-5-101. Short title.

This article may be cited as “The Power District Law.”

HISTORY: Codes, 1942, § 5439; Laws, 1936, ch. 187.

Cross References —

Municipally-owned utilities generally, see §§21-27-11 et seq.

§ 77-5-103. Definitions.

Unless the context otherwise requires:

“Power district” or “district” means a power district organized under this article, either as originally organized or as the same may be from time to time altered or amended.

“Municipality” means any incorporated city, incorporated town or incorporated village.

“Governing body,” whenever used in relation to any municipality or county, means the body or board, by whatsoever name known, having charge of the governing of such municipality or county and shall be held to include the mayor or other chief executive officer of such municipality or county in any case wherein the concurrence or approval of such officer is required by the law governing such municipality or county for the adoption of any municipal or county ordinance or resolution or other municipal or county act provided for in this article.

“Board of directors,” “directors” or “board” means the board of directors of a power district selected as provided in this article, duly constituted, organized and acting as a board.

“Election unit” means an election district as provided for by Chapter 5 of Title 23, Mississippi Code of 1972.

“Bonds” shall mean and include negotiable bonds, interim certificates or receipts, notes, debentures and all other evidences of indebtedness either issued or the payment thereof assumed by the authority.

“Public utility” or “utility” means the plant, works, system, facilities or properties together with all parts thereof and appurtenances thereto, including contract rights, used and useful primarily for the production, transmission or distribution of electric energy to or for the public for any purpose.

HISTORY: Codes, 1942, § 5440; Laws, 1936, ch. 187.

Editor’s Notes —

Chapter 5 of Title 23, referred to in item (e), was repealed effective January 1, 1987. For present similar provisions, see §23-15-281 et seq.

§ 77-5-105. Boundaries of power districts.

Power districts, the boundaries of which shall be coterminous with the boundaries of one or more election units, which need not be contiguous, but which shall not be more distant from one another than twenty miles, may be created as hereafter provided in this article, and when so created shall be considered bodies politic and corporate and shall possess and may exercise the powers granted in this article. However, no municipality shall be divided in the creation of a district.

HISTORY: Codes, 1942, § 5441; Laws, 1936, ch. 187.

§ 77-5-107. Resolution seeking election authorizing creation of power district.

The governing bodies of one-half or more of the municipalities, if any, proposed to be included in the district [or, (a) if the proposed district includes only territory not within the corporate limits of any municipality, then the governing body or bodies of the county or counties containing such territory, or (b) if the proposed district includes a municipality or municipalities and territory not within the corporate limits of any municipality, then the governing bodies of the municipality, or if more than one, the governing bodies of one-half or more of the total number of municipalities proposed to be included in the district and of the county or counties containing such territory] shall first pass resolutions, declaring the public convenience and necessity demand t