Bill Text: GA SB454 | 2011-2012 | Regular Session | Introduced

Georgia Senate Bill 454 (Prior Session Legislation)

Introduced

Bill Title: Telecommunications; revise and update certain provisions; remove telegraph companies from jurisdiction of Public Service Commission

Spectrum: Partisan Bill (Republican 6-0)

Status: (Introduced - Dead) 2012-02-17 - Senate Read and Referred [SB454 Detail]

Download: Georgia-2011-SB454-Introduced.html

12 LC 36 2095

Senate Bill 454

By: Senators Loudermilk of the 52nd, Albers of the 56th, Crane of the 28th, Heath of the 31st, Rogers of the 21st and others

A BILL TO BE ENTITLED
AN ACT

To amend Article 1 of Chapter 4 of Title 14 and Title 46 of the Official Code of Georgia Annotated, relating to general provisions applicable to Secretary of State corporations and public utilities and public transportation, respectively, so as to revise and update certain provisions relating to telecommunications; to remove telegraph companies from the jurisdiction of the Public Service Commission; to change certain provisions relating to exercise of power of eminent domain by telephone and telegraph companies; to change certain provisions relating to avoiding or attempting to avoid charges for use of telecommunications service; to change certain provisions relating to access to a live telephone operator; to eliminate provisions relating to granting of certificates to persons engaged in construction or operation of telephone line, plant, or system as of February 1950; to eliminate certain provisions relating to telegraph service; to amend various other titles of the Official Code of Georgia Annotated, so as to revise cross-references for purposes of conformity; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Article 1 of Chapter 4 of Title 14 of the Official Code of Georgia Annotated, relating to general provisions applicable to Secretary of State corporations, is amended by revising Code Section 14-4-2, relating to existing venue statutes unaffected by Chapter 4, as follows:

"14-4-2.

Nothing in this chapter shall affect existing statutes with respect to the venue of actions against railroad, electric, banking, trust, insurance, canal, navigation, express, and telegraph companies, which existing statutes include, as to express companies, those statutes codified as Code Sections 46-9-234 through 46-9-236; as to telegraph companies, that statute codified as Code Section 46-5-149; as to companies under the jurisdiction of the Georgia Public Service Commission, that statute codified as Code Section 46-2-92."

SECTION 2.

Code Section 36-34-2 of the Official Code of Georgia Annotated, relating to powers relating to administration of government generally, is amended by revising subparagraph (A) of paragraph (7) as follows:

"(A) The power to grant franchises to or make contracts with railroads, street railways, or urban transportation companies, electric light or power companies, gas companies, steam-heat companies, telephone and telegraph companies, water companies, and other public utilities for the use and occupancy of the streets of the city, for the purpose of rendering utility services, upon such conditions and for such time as the governing authority of the municipal corporation may deem wise and subject to the Constitution and the general laws of this state."

SECTION 3.

Title 46 of the Official Code of Georgia Annotated, relating to public utilities and public transportation, is amended by revising subsection (a) of Code Section 46-2-20, relating to jurisdiction of commission generally and powers and duties of commission generally, as follows:

"(a) Except as otherwise provided by law, the commission shall have the general supervision of all common carriers, express companies, railroad or street railroad companies, dock or wharfage companies, terminal or terminal station companies, telephone and telegraph companies, gas or electric light and power companies, and persons or private companies who operate rapid rail passenger service lines within this state; provided, however, that nothing in this subsection shall be deemed to extend the jurisdiction of the commission to include the operations of the Metropolitan Atlanta Rapid Transit Authority created in an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended."

SECTION 4.

Said title is further amended by revising Code Section 46-2-22, relating to jurisdiction of commission over express companies and telegraph companies, as follows:

"46-2-22.

All companies owning, controlling, or operating lines of express or telegraph which are in whole or in part in this state shall be under the control of the commission, which shall have full power to regulate the prices charged by any such company for any service performed by such company. All the powers given to the commission over railroads in this state and all the penalties prescribed against railroad companies are declared to be of force against companies owning, controlling, or operating lines of express or telegraph and doing business in this state and whose lines are in whole or in part in this state, so far as such powers and penalties can be made applicable thereto. The commission shall also have power and authority to require such companies to locate agencies at railroad stations Reserved."

SECTION 5.
Said title is further amended by revising Code Section 46-2-23, relating to rate-making power of commission generally and special provisions concerning telecommunications companies, as follows:

"46-2-23.

(a) The commission shall have exclusive power to determine what are just and reasonable rates and charges to be made by any person, firm, or corporation subject to its jurisdiction.

(b) As to those telecommunications companies subject to the jurisdiction of the commission, the commission is not required to fix and determine specific rates, tariffs, or charges for the services offered by said telecommunications companies and in lieu thereof may on application of an interested party or on its own motion after public notice and hearing:

(1) Totally deregulate a service;

(2) Totally eliminate any tariffs on a service;

(3) Eliminate tariff rates for a service but retain tariffs for service standards and requirements; or

(4) Eliminate tariff rates for a service but require that notice of any rate changes be provided to the commission.

(c) In determining what actions, if any, are to be taken on applications under subsection (b) of this Code section, the commission shall conduct hearings at which it shall consider the following factors:

(1) The extent to which competing telecommunications services are available from competitive providers in the relevant geographic market;

(2) The ability of competitive providers to make functionally equivalent or substitute services readily available;

(3) The number and size of competitive providers of service;

(4) The overall impact of the proposed regulatory change on the continued availability of existing services at just and reasonable rates;

(5) The impact of the proposed regulatory change upon efforts to promote universal availability of basic telecommunications services at affordable rates and to permit telecommunications companies subject to the jurisdiction of the commission to respond to competitive thrusts; and

(6) Such other factors as the commission may determine are in the public interest.

(d) Nothing in this Code section shall authorize the application of subsection (b) of this Code section to any service unless functionally equivalent or substitute services are readily available from competitive providers in the relevant geographic market. This finding must be made on the record after public hearing.

(e) Any telecommunications service deregulated or detariffed under this Code section may be reregulated or resubjected to tariffing by the commission if the commission finds, through a proceeding initiated on its own or upon application by an interested party, that such reregulation or retariffing is in the public interest.

(f) Nothing in this Code section shall be interpreted as requiring the commission to alter, amend, or repeal any rule or regulation which relates to any telecommunications company and which has been adopted by the commission or which is under consideration for adoption by the commission as of April 14, 1988.

(g) No telecommunications company may use current revenues earned or expenses incurred in conjunction with services subject to regulation to subsidize services which are not regulated or tariffed. The commission may adopt procedural rules as necessary to implement this subsection.

(h) Beginning one year after deregulation or eliminating tariffs on a service, the utility will file within 60 days of such anniversary date with the commission a report showing the rates or tariffs for such service on the effective date of deregulation or detariffing and the rates or tariffs on the anniversary date. Such reports will continue to be filed on an updated basis annually for a period of five years. The commission may prescribe the form and content of such reports. The commission will thereafter as soon as practicable file a summary of the results and contents of such reports with the House Energy, Utilities and Telecommunications Committee and the Senate Regulated Industries and Utilities Committee."

SECTION 6.

Said title is further amended by revising Code Section 46-5-1, relating to exercise of power of eminent domain by telephone and telegraph companies, placement of posts and other fixtures, regulation of construction of fixtures, posts, and wires near railroad tracks, liability of telegraph and telephone companies for damages, required information, and due compensation, as follows:

"46-5-1.

(a)(1) Any telegraph or telephone company chartered by the laws of this or any other state shall have the right to construct, maintain, and operate its lines and facilities upon, under, along, and over the public roads and highways and rights of way of this state with the approval of the county or municipal authorities in charge of such roads, highways, and rights of way. The approval of such municipal authorities shall be limited to the process set forth in paragraph (3) of subsection (b) of this Code section, and the approval of the county shall be limited to the permitting process set forth in subsection (c) of this Code section. Upon making due compensation, as defined for municipal authorities in paragraph (9) of subsection (b) of this Code section and as provided for counties in subsection (c) of this Code section, a telegraph or telephone company shall have the right to construct, maintain, and operate its lines through or over any lands of this state; on, along, and upon the right of way and structures of any railroads; and, where necessary, under or over any private lands; and, to that end, a telegraph or telephone company may have and exercise the right of eminent domain.

(2) Notwithstanding any other law, a municipal authority or county shall not:

(A) Require any telegraph or telephone company to apply for or enter into an individual license, franchise, or other agreement with such municipal authority or county; or

(B) Impose any occupational license tax or fee as a condition of placing or maintaining lines and facilities in its public roads and highways or rights of way, except as specifically set forth in this Code section.

(3) A county or municipal authority shall not impose any occupational license, tax, fee, regulation, obligation, or requirement upon the provision of the services described in paragraphs (1) and (2) of Code Section 46-5-221, including any occupational license, tax, fee, regulation, obligation, or requirement specifically set forth in any part of this chapter other than Part 4.

(4) Whenever a telegraph or telephone company exercises its powers under paragraph (1) of this subsection, the posts, arms, insulators, and other fixtures of its lines shall be erected, placed, and maintained so as not to obstruct or interfere with the ordinary use of such railroads or public roads and highways, or with the convenience of any landowners, more than may be unavoidable. Any lines constructed by a telegraph or telephone company on the right of way of any railroad company shall be subject to relocation so as to conform to any uses and needs of such railroad company for railroad purposes. Such fixtures, posts, and wires shall be erected at such distances from the tracks of said railroads as will prevent any and all damage to said railroad companies by the falling of said fixtures, posts, or wires upon said railroad tracks; and such telegraph or telephone companies shall be liable to said railroad companies for all damages resulting from a failure to comply with this Code section.

(5) No county or municipal authority shall impose upon a telegraph or telephone company any build-out requirements on network construction or service deployment, and, to the extent that a telegraph or telephone company has elected alternative regulation pursuant to Code Section 46-5-165, such company may satisfy its obligations pursuant to paragraph (2) of Code Section 46-5-169 by providing communications service, at the company's option, through any affiliated companies and through the use of any technology or service arrangement; provided, however, that such company shall remain subject to its obligations as set forth in paragraphs (4) and (5) of Code Section 46-5-169. The obligations required pursuant to paragraph (2) of Code Section 46-5-169 shall not apply to a telephone company that has elected alternative regulation pursuant to Code Section 46-5-165 and does not receive distributions from the Universal Access Fund as provided for in Code Section 46-5-167.

(b)(1) Except as set forth in paragraph (6) of this subsection, any telegraph or telephone company that places or seeks to place lines and facilities in the public roads and highways or rights of way of a municipal authority shall provide to such municipal authority the following information:

(A) The name, address, and telephone number of a principal office and local agent of such telegraph or telephone company;

(B) Proof of certification from the Georgia Public Service Commission of such telegraph or telephone company to provide telecommunications services in this state;

(C) Proof of insurance or self-insurance of such telegraph or telephone company adequate to defend and cover claims of third parties and of municipal authorities;

(D) A description of the telegraph or telephone company's service area, which description shall be sufficiently detailed so as to allow a municipal authority to respond to subscriber inquiries. For the purposes of this paragraph, a telegraph or telephone company may, in lieu of or as supplement to a written description, provide a map on 8 1/2 by 11 inch paper that is clear and legible and that fairly depicts the service area within the boundaries of the municipal authority. If such service area is less than the boundaries of an entire municipal authority, the map shall describe the boundaries of the geographic area to be served in clear and concise terms;

(E) A description of the services to be provided;

(F) An affirmative declaration that the telegraph or telephone company shall comply with all applicable federal, state, and local laws and regulations, including municipal ordinances and regulations, regarding the placement and maintenance of facilities in the public rights of way that are reasonable, nondiscriminatory, and applicable to all users of the public rights of way, including the requirements of Chapter 9 of Title 25, the 'Georgia Utility Facility Protection Act'; and

(G) A statement in bold type at the top of the application as follows: 'Pursuant to paragraph (2) of subsection (b) of Code Section 46-5-1 of the Official Code of Georgia Annotated, the municipal authority shall notify the applicant of any deficiencies in this application within 15 business days of receipt of this application.'

(2) If an application is incomplete, the municipal authority shall notify the telegraph or telephone company within 15 business days of the receipt of such application; such notice shall specifically identify all application deficiencies. If no such notification is given within 15 business days of the receipt of an application, such application shall be deemed complete.

(3) Within 60 calendar days of the receipt of a completed application, the municipal authority may adopt such application by adoption of a resolution or ordinance or by notification to the telegraph or telephone company. The failure of a municipal authority to adopt an application within 60 calendar days of the receipt of a completed application shall constitute final adoption of such application.

(4) If it modifies its service area or provisioned services identified in the original application, the telegraph or telephone company shall notify the municipal authority of changes to the service area or the services provided. Such notice shall be given at least 20 days prior to the effective date of such change. Such notification shall contain a geographic description of the new service area or areas and new services to be provided within the jurisdiction of the affected municipal authority, if any. The municipal authority shall provide to all telegraph and telephone companies located in its rights of way written notice of annexations and changes in municipal corporate boundaries which, for the purposes of this Code section, shall become effective 30 days following receipt.

(5) An application adopted pursuant to this Code section may be terminated by a telegraph or telephone company by submitting a notice of termination to the affected municipal authority. For purposes of this Code section, such notice shall identify the telegraph or telephone company, the affected service area, and the effective date of such termination, which shall not be less than 60 calendar days from the date of filing the notice of termination.

(6) Any telegraph or telephone company that has previously obtained permits for the placement of its facilities, has specified the name of such telegraph or telephone company in such permit application, has previously placed its facilities in any public right of way, and has paid and continues to pay any applicable municipal authority's occupational license taxes, permit fees, franchise fees, except as set forth in paragraph (8) of this subsection, or, if applicable, county permit fees shall be deemed to have complied with this Code section without any further action on the part of such telegraph or telephone company except as set forth in paragraphs (8), (9), (11), and (17) of this subsection.

(7) Any telegraph or telephone company that has placed lines and facilities in the public roads and highways or rights of way of a municipal authority without first obtaining permits or otherwise notifying the appropriate municipal authority of its presence in the public roads and highways or rights of way shall provide the information required by paragraph (1) of this subsection, if applicable, to such municipal authority on or before October 1, 2008. As of October 1, 2008, if any telegraph or telephone company, other than those who meet the requirements of paragraph (6) of this subsection, has failed or fails to provide the information required by paragraph (1) of this subsection to the municipal authority in which its lines or facilities are located, such municipal authority shall provide written notice to such telegraph or telephone company giving that company 15 calendar days from the date of receipt of such notice to comply with subsection (b) of this Code section. In the event the 15 calendar day cure period expires without compliance, such municipal authority may petition the Georgia Public Service Commission which shall, after an opportunity for a hearing, order the appropriate relief.

(8)(A) In the event any telegraph or telephone company has an existing, valid municipal franchise agreement as of January 1, 2008, the terms and conditions of such existing franchise agreement shall only remain effective and enforceable until the expiration of the existing agreement or December 31, 2012, whichever shall first occur.

(B) In the event any telegraph or telephone company is paying an existing occupational license tax or fee, based on actual recurring local services revenues, as of January 1, 2008, such payment shall be considered the payment of due compensation without further action on the part of the municipal authority. In the event that the rate of such existing tax or fee exceeds 3 percent of actual recurring local service revenues, that rate shall remain effective until December 31, 2012; thereafter, the payment by such telegraph or telephone company at the rate of 3 percent shall be considered the payment of due compensation without further action on the part of the municipal authority.

(9) As used in this Code section, 'due compensation' for a municipal authority means an amount equal to no more than 3 percent of actual recurring local service revenues received by such company from its retail, end user customers located within the boundaries of such municipal authority. 'Actual recurring local service revenues' means those revenues customarily included in the Uniform System of Accounts as prescribed by the Federal Communications Commission for Class 'A' and 'B' companies; provided, however, that only the local service portion of the following accounts shall be included:

(A) Basic local service revenue, as defined in 47 C.F.R. 32.5000;

(B) Basic area revenue, as defined in 47 C.F.R. 32.5001;

(D) Public telephone revenue, as defined in 47 C.F.R. 32.5010;

(E) Local private line revenue, as defined in 47 C.F.R. 35.5040; provided, however, that the portion of such accounts attributable to audio and video program transmission service where both terminals of the private line are within the corporate limits of the municipal authority shall not be included;

(F) Other local exchange revenue, as defined in 47 C.F.R. 32.5060;

(G) Local exchange service, as defined in 47 C.F.R. 32.5069;

(H) Network access revenue, as defined in 47 C.F.R. 32.5080;

(I) Directory revenue, as defined in 47 C.F.R. 32.5320; provided, however, that the portion of such accounts attributable to revenue derived from listings in portion of directories not considered white pages shall not be included;

(J) Nonregulated operating revenue, as defined in 47 C.F.R. 32.5280; provided, however, that the portion of such accounts attributable to revenues derived from private lines shall not be included; and

(K) Uncollectible revenue, as defined in 47 C.F.R. 32.5300.

Any charge imposed by a municipal authority shall be assessed in a nondiscriminatory and competitively neutral manner.

(10) Any due compensation paid to municipal authorities pursuant to paragraph (9) of this subsection shall be in lieu of any other permit fee, encroachment fee, degradation fee, disruption fee, business license tax, occupational license tax, occupational license fee, or other fee otherwise permitted pursuant to the provisions of subparagraph (A) of paragraph (7) of Code Section 36-34-2 or Code Section 32-4-92 et seq. or any other provision of law regardless of nomenclature.

(11) A telegraph or telephone company with facilities in the public rights of way of a municipal authority shall begin assessing due compensation, as defined in subsection (a) of this Code section, on subscribers on the date that service commences unless such company is currently paying a municipal authority's occupational license tax. Such due compensation shall be paid directly to each affected municipal authority within 30 calendar days after the last day of each calendar quarter. In the event that due compensation is not paid on or before 30 calendar days after the last day of each calendar quarter, the affected municipal authority shall provide written notice to such telegraph or telephone company, giving such company 15 calendar days from the date such company receives such notice to cure any such nonpayment. In the event the due compensation remitted to the affected municipal authority is not postmarked on or before the expiration of the 15 day cure period, such company shall pay interest thereon at a rate of 1 percent per month to the affected municipal authority. If the 15 day cure period expires on a Saturday, a Sunday, or a state legal holiday, the due date shall be the next business day. A telegraph or telephone company shall not be assessed any interest on late payments if due compensation was submitted in error to a neighboring municipal authority.

(12) Each municipal authority may, no more than once annually, audit the business records of a telegraph or telephone company to the extent necessary to ensure payment in accordance with this Code section. As used in this Code section, 'audit' means a comprehensive review of the records of a company which is reasonably related to the calculation and payment of due compensation. Once any audited period of a company has been the subject of a requested audit, such audited period of such company shall not again be the subject of any audit. In the event of a dispute concerning the amount of due compensation due to an affected municipal authority under this Code section, an action may be brought in a court of competent jurisdiction by an affected municipal authority seeking to recover an additional amount alleged to be due or by a company seeking a refund of an alleged overpayment; provided, however, that any such action shall be brought within three years following the end of the quarter to which the disputed amount relates, although such time period may be extended by written agreement between the company and such affected municipal authority. Each party shall bear the party's own costs incurred in connection with any dispute. The auditing municipal authority shall bear the cost of the audit; provided, however, that if an affected municipal authority files an action to recover alleged underpayments of due compensation and a court of competent jurisdiction determines the company has underpaid due compensation due for any 12 month period by 10 percent or more, such company shall be required to pay such municipal authority's reasonable costs associated with such audit along with any due compensation underpayments; provided, further, that late payments shall not apply. All undisputed amounts due to a municipal authority resulting from an audit shall be paid to the municipal authority within 45 days, or interest shall accrue.

(13) The information provided pursuant to paragraph (1) of this subsection and any records or information furnished or disclosed by a telegraph or telephone company to an affected municipal authority pursuant to paragraph (12) of this subsection shall be exempt from public inspection under Code Section 50-18-70. It shall be the duty of such telegraph or telephone company to mark all such documents as exempt from Code Section 50-18-70, et seq., and the telegraph or telephone company shall defend, indemnify, and hold harmless any municipal authority and any municipal officer or employee in any request for, or in any action seeking, access to such records.

(14) No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim an affected municipal authority may have for further or additional sums payable as due compensation.

(15) Any amounts overpaid by a company as due compensation shall be deducted from future due compensation owed.

(16) A telegraph or telephone company paying due compensation pursuant to this Code section may designate that portion of a subscriber's bill attributable to such charge as a separate line item of the bill and recover such amount from the subscriber.

(17) Nothing in this Code section shall affect the authority of a municipal authority to require telegraph or telephone companies accessing the public roads and highways and rights of way of a municipal authority to obtain permits and otherwise comply with the reasonable regulations established pursuant to paragraph (10) of subsection (a) of Code Section 32-4-92.

(18) If a telegraph or telephone company does not have retail, end user customers located within the boundaries of a municipal authority, then the payment by such company at the same rates that such payments were being made as of January 1, 2008, to a municipal authority for the use of its rights of way shall be considered the payment of due compensation; provided, however, that at the expiration date of any existing agreement for use of such municipal rights of way or December 31, 2012, whichever is earlier, the payment at rates in accordance with the rates set by regulations promulgated by the Department of Transportation shall be considered the payment of due compensation. Provided, further, that if a telegraph or telephone company begins providing service after January 1, 2008, and such telegraph or telephone company does not have retail, end user customers located within the boundaries of a municipal authority, the payment by such company at rates in accordance with the rates set by regulations promulgated by the Department of Transportation to a municipal authority for the use of its rights of way shall be considered the payment of due compensation.

(19) Nothing in this Code section shall be construed to affect any franchise fee payments which were in dispute on or before January 1, 2008.

(c) If a telegraph or telephone company accesses the public roads and highways and rights of way of a county and such county requires such telegraph or telephone company to pay due compensation, such due compensation shall be limited to an administrative cost recoupment fee which shall not exceed such county's direct, actual costs incurred in its permitting process, including issuing and processing permits, plan reviews, physical inspection and direct administrative costs; and such costs shall be demonstrable and shall be equitable among applicable users of such county's roads and highways or rights of way. Permit fees shall not include the costs of highway or rights of way acquisition or any general administrative, management, or maintenance costs of the roads and highways or rights of way and shall not be imposed for any activity that does not require the physical disturbance of such public roads and highways or rights of way or does not impair access to or full use of such public roads and highways or rights of way. Nothing in this Code section shall affect the authority of a county to require a telegraph or telephone company to comply with reasonable regulations for construction of telephone lines and facilities in public highways or rights of way pursuant to the provisions of paragraph (6) of Code Section 32-4-42."

SECTION 7.

Said title is further amended by revising subsection (a) of Code Section 46-5-2, relating to avoiding or attempting to avoid charges for use of telecommunications service, penalties, and computation of damages, as follows:

"(a) It shall be unlawful for any person to avoid or attempt to avoid or to cause another to avoid the lawful charges, in whole or in part, for any telecommunication service as defined in subsection (a) of Code Section 46-5-3 or for the transmission of a message, signal, or other communication by telephone or telegraph or over telecommunication or telegraph facilities by the use of any fraudulent scheme, means, or method, or by the use of any unlawful telecommunication device as defined in subsection (a) of Code Section 46-5-3 or other mechanical, electric, or electronic device; provided, however, that this Code section and Code Sections 46-5-3 and 46-5-4 shall not apply to amateur radio repeater operation involving a dial interconnect."

SECTION 8.

Said title is further amended by revising Code Section 46-5-26, relating to access to live telephone operator, as follows:

"46-5-26.

(a) Each telecommunications utility and telecommunications company that provides operator service shall ensure that a caller may obtain access to a live operator through a method designed to be easily and clearly understandable and accessible to the caller. A telecommunications utility or telecommunications company shall submit to the Public Service Commission the method by which the telecommunications utility or telecommunications company shall provide access to a live operator for review, except for a telecommunications utility or telecommunications company whose operator services are under the jurisdiction, regulation, and rules of the Public Service Commission. This Code section applies regardless of the method by which the telecommunications utility or telecommunications company provides the operator service. The requirements of this Code section shall not apply to telephones located in prisons or jail facilities or to wireless telecommunication services. For the purpose of this Code section, 'operator services' means services that are provided when a caller dials '0'.

(b) The failure of a telecommunications utility or telecommunications company to provide access to a live operator as required in subsection (a) of this Code section shall not serve as the basis for a cause of action for personal injuries or damage to property."

SECTION 9.

Said title is further amended by revising Code Section 46-5-41, relating to obtaining of certificate of public convenience and necessity for construction, operation, acquisition, or extension of telephone lines, plants, or systems, as follows:

"46-5-41.

Except as provided in Code Section 46-5-46, no No person shall construct or operate any telephone line, plant, or system or any extension thereof or acquire ownership or control thereof, either directly or indirectly, without first obtaining from the Public Service Commission a certificate that the present or future public convenience and necessity require or will require such construction, operation, or acquisition."

SECTION 10.

Said title is further amended by repealing in its entirety Code Section 46-5-46, relating to granting of certificates to persons engaged in construction or operation of telephone line, plant, or system as of February, 1950, which reads as follows:

"46-5-46.

(a) Any person engaged in the construction or operation of any telephone line, plant, or system or any extension thereof as of February 17, 1950, shall be entitled to receive a certificate of public convenience and necessity from the commission authorizing such person to continue the construction or operation of such line, plant, or system or any extension thereof in the territory being served by such person on February 17, 1950, if by February 17, 1951, such person files maps with the commission showing the territory being served by such person.

(b) If more than one person files maps pursuant to subsection (a) of this Code section indicating service in the same territory, the commission shall, after a hearing conducted after the giving of reasonable notice to the interested parties, determine from such evidence as it may reasonably require which of such persons shall be entitled to the certificate. In making such determination, the commission shall consider the ability of such persons to furnish thereafter reasonably adequate service in the territory in question.

(c) Pending the granting of a certificate as provided in this Code section, any person may lawfully continue the construction or operation of any telephone line, plant, or system or any extension thereof in the territory being served by that person on February 17, 1950.

(d) This Code section shall not be construed to require any person to secure a certificate for an extension within any municipality within which that person has lawfully commenced operations prior to February 17, 1950, or for an extension within or to territory already served by such person, which extension is necessary in the ordinary course of business.

(e) This Code section shall not be construed to require any person to secure a certificate for the construction of substitute facilities within or to any municipality or territory already served by that person or for an extension into territory contiguous to that already occupied by that person and not receiving similar service from another person if no certificate of public convenience and necessity has been issued to or applied for by any other person."

SECTION 11.

Said title is further amended by repealing in its entirety Article 3 of Chapter 5, relating to telegraph service, and designating such article as reserved as follows:

"ARTICLE 3

46-5-140.

As used in this article, the term:

(1) 'Telegraph company' means every corporation, company, association, joint-stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, owning, operating, or managing any telegraph line or part of a telegraph line used in the conduct of the business of affording for hire communication by telegraph within this state.

(2) 'Telegraph line' means conduits, poles, wires, cables, crossarms, instruments, machines, appliances, instrumentalities, and all devices, including radio and other advancements of the art of telegraphy, real estate, easements, apparatus, property, and routes used and operated to facilitate the business of affording communication service by telegraph to the public for hire within this state.

46-5-141.

All corporate powers and privileges granted to telegraph companies in this state shall be granted in the manner described in this Code section. Whenever at least five persons who are 18 years of age or over and who are citizens of the United States, two-thirds of whom are residents of this state, propose to form a corporation for constructing, equipping, and operating any telegraph line or for carrying on the business of a telegraph company, they shall make and file in the office of the Secretary of State, in duplicate, a petition for charter, under their hands and seals, setting forth:

(1) The name of the corporation proposed;

(2) The object for which it is formed;

(3) The amount of its proposed capital stock;

(4) The number of shares of such capital stock;

(5) The places from and to which such telegraph line is intended to be constructed, equipped, and operated, or, if already constructed, then the places from and to which the same is intended to be operated, giving as nearly as practicable the counties and cities through which it may or does pass;

(6) The location of the principal office of such corporation by city and county, which shall be in this state;

(7) The time of commencement and duration of said corporation, the period of duration not to exceed 50 years; and

(8) The name and residence of each applicant.

46-5-142.

Upon the filing of the petition for charter as specified in Code Section 46-5-141, the applicants shall pay to the Secretary of State the fee of $100.00. The Secretary of State shall thereafter transmit a copy of the petition to the Public Service Commission for approval prior to the issuance of a license. The Public Service Commission shall then approve or disapprove the issuance of a license based, in part, upon whether the proposed telegraph company has a sufficient amount of capitalization for incorporation. The Public Service Commission shall thereafter notify the Secretary of State in writing of its decision. If the petition is approved, the Secretary of State shall then issue to the applicants a license as commissioners to open books of subscription to the capital stock of the corporation at such times and places as a majority of the commissioners may determine after having given public notice thereof in the legal organ of the county where the principal office of the company will be located for at least two weeks and in one or more of the public newspapers of this state for at least two weeks.

46-5-143.

As soon as possible after the capital stock has been fully subscribed, the commissioners shall call a meeting of the subscribers to the capital stock for the purpose of electing directors and transacting such other business as may come before the meeting. Notice of the meeting shall be given by depositing in the post office, properly addressed to each subscriber, at least ten days before the time fixed, a written or printed notice stating the object, time, and place of such meeting. In all elections for directors of the proposed corporation, each subscriber to the capital stock shall be entitled to one vote for each share of the capital stock subscribed for by him, which vote may be cast in person or by written proxy. At least three persons, two-thirds of whom shall be residents of Georgia, shall be elected as directors of the proposed corporation.

46-5-144.

(a) The commissioners shall make a full report of their proceedings and of the proceedings of the meeting of the stockholders, including a copy of the notice provided for in Code Section 46-5-143; a copy of the list of subscribers, with a statement of their respective residences and the number of shares subscribed for by each; and the names and residences of the directors elected at the stockholders' meeting and their respective terms of office. This report shall be sworn to by at least a majority of the commissioners and shall be filed with the Secretary of State in duplicate. Attached to the report of the commissioners shall be the publishers' affidavits certifying that the aforementioned required publication has been completed. The Secretary of State shall forward a copy of the report to the Public Service Commission for its approval.

(b) Upon the filing of the report and its approval by the Public Service Commission, the Secretary of State shall issue a certificate of the complete organization of the corporation, duly authenticated under his official signature and the seal of the state, and the proceedings shall be recorded in his office in a book for that purpose.

(c) Upon the recording of such proceedings in the manner required by this Code section, the corporation shall be deemed fully organized and shall become and be duly incorporated under the corporate name set forth in the written declaration on file in the office of the Secretary of State and shall be authorized to proceed to business. Unless such corporation shall have so completed its organization within two years after the date of the filing of the written declaration for that purpose in the office of the Secretary of State, the license to the commissioners shall be held and deemed revoked and forfeited.

46-5-145.

Any telegraph company incorporated under this article may amend its charter as provided by Code Sections 14-4-100 through 14-4-105.

46-5-146.

(a) Any corporations created under and by virtue of this article shall exist and shall have and enjoy succession under its corporate name and may, under such name:

(1) Make and enter into contracts;

(2) Sue and be sued;

(3) Purchase and hold such real or personal property as may be required for the purposes of the corporation within the scope of its business and sell, alienate, mortgage, pledge, convey, or otherwise dispose of the same, with all rights and privileges therewith connected; and

(4) Make and establish such bylaws, rules, and regulations for its government as may be necessary.

(b) Such corporation shall also have power:

(1) To have and use a corporate seal, and to alter the same at pleasure;

(2) To appoint such officers or agents as may be necessary for the proper management of the affairs of such corporation; and

(3) To erect and maintain telegraph lines in and throughout this state or elsewhere in the United States, with all necessary stations, offices, apparatus, improvements, and machinery, and to employ the same with any new inventions which may from time to time be acquired, in the rapid transmission, for remuneration and profit, of information, messages, and intelligence to and from the various places and stations on the telegraph line of such corporation.

46-5-147.

Every telegraph company which has a line of wires in this state and which is engaged in telegraphing for the public shall, during its usual business hours, receive dispatches or messages, whether from other telegraphic lines or from individuals, and, on payment or tender of the usual charge according to the regulations established by the commission, shall transmit and deliver the same with impartiality and good faith and with due diligence, under penalty of $25.00, which penalty may be recovered by action in a court having jurisdiction thereof, by either the sender of the dispatch or message or the person to whom sent or directed, whichever may first bring an action, provided that nothing in this Code section shall be construed as impairing or in any way modifying the right of any person to recover damages for any breach of contract or duty by any telegraph company; and such penalty and such damages may, if the party so elects, be recovered in the same action.

46-5-148.

Reserved.

46-5-149.

(a) Whenever any person has any claim or demand upon any telegraph company having offices or more than one place of doing business in this state, such person may institute an action against such telegraph company within the county where the principal office of such company is located, or in any county where such telegraph company may have an agency or place of business, or where such place of business was located at the time the cause of action accrued or the contract was made out of which the cause of action arose.

(b) In all actions brought under this Code section, service shall be effected upon such telegraph company by leaving a copy of the summons and complaint with the agent of the company, if any; if there is no such agent in the county, then a copy of the summons and complaint shall be left at the agency or place of doing business where the same was located at the time such cause of action accrued or the contract was made out of which the cause of action arose. Reserved."

SECTION 12.

Code Section 50-16-42 of the Official Code of Georgia Annotated, relating to revocable license agreements without competitive bidding authorized, terms and conditions, telegraph or telephone lines construction provisions unaffected, and exceptions, is amended by revising subsection (c) as follows:

"(c) This Code section shall not be construed or interpreted as amending, conflicting with, or superseding any or all of Code Section 46-5-1, relating to the construction of telegraph or telephone lines."

SECTION 13.

All laws and parts of laws in conflict with this Act are repealed.