219 S.C. 414, 65 S.E.2d 781; 126 N.E. 739, 18 A.L.R. 929; 215 F.2d 542; 325 Mo. 1217, 31 S.W.2d 67. As to the orders of the Public Service Commission being unlawful, unreasonable and unsupported by the evidence so as to amount to a violation of law and ab" />

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PEE DEE ELEC. CO-OP. v. P.S.C.

April 3, 1956

PEE DEE ELECTRIC COOPERATIVE, INC., APPELLANT,
v.
THE PUBLIC SERVICE COMMISSION, CLYDE F. BOLAND, WINCHESTER SMITH, HUGH C. BROWN, CHARLES A. RICE, J. LOUIS MOSS, JOHN J. SNOW AND EDWARD WIMBERLY, INDIVIDUALLY AND COLLECTIVELY AS MEMBERS OF THE PUBLIC SERVICE COMMISSION; CAROLINA POWER & LIGHT COMPANY AND JEFFERSON STANDARD BROADCASTING COMPANY, RESPONDENTS.



The opinion of the court was delivered by: Legge, Justice.

April 3, 1956.

This appeal is from an order of the Court of Common Pleas for Richland County affirming the action of the Public Service Commission in denying appellant's petition to enjoin the respondent Carolina Power & Light Company from extending its electric power line from the City of Florence to serve a television station of the respondent Jefferson Standard Broadcasting Company. Pending the appeal, Aiken Electric Cooperative, Lynches River Electric Cooperative, Palmetto Electric Cooperative, Berkeley Electric Cooperative, Broad River Electric Cooperative, Edisto Electric Cooperative, Mid-Carolina Electric Cooperative and Santee Electric Cooperative were granted permission to file a brief amici curiae; and such brief has been filed and fully considered.

On December 28, 1953, Jefferson Standard Broadcasting Company (hereinafter referred to as the broadcasting company), which was in process of erecting a television broadcasting station on the Cashua Ferry Road some four and a half miles northeast of the city of Florence, applied to Carolina Power & Light Company (hereinafter referred to as the power company) for the supply of electricity needed for the operation of the station, initially 400 kw of three-phase current; and thereafter on January 14, 1954, the said parties entered into an agreement for such service. Thereupon the power company commenced construction of the necessary 22 kv three-phase transmission line from its Florence substation to the site of the broadcasting station, a distance of about four and a half miles. On February 2, 1954, before this line had been completed, appellant petitioned the Public Service Commission for an order requiring the power company to cease and desist from constructing it; and upon this petition the Public Service Commission issued, on February 4, 1954, its order requiring the power company to show cause before it on February 18, 1954, why the order prayed for should not be issued. The power company having responded to the show cause order, and the broadcasting company having intervened in opposition to the petition, the matter was heard before the Commission on February 18, 1954, and thereafter the Commission issued its order dated February 23, 1954, denying the petition; and by order dated March 16, 1954, it refused petitioner's request for rehearing.

On April 14, 1954, appellant brought the present action to review and set aside the orders of the Commission before mentioned. The case came on for trial before the Honorable J. Henry Johnson, Presiding Judge, at the November, 1954, term, and by his order of November 24, 1954, from which this appeal is taken, he found that all pertinent facts found by the Commission were amply supported by the evidence before it and that the questioned orders of the Commission were free from error of law.

It appears undisputed that while appellant had two single-phrase 7.2 kv lines within a mile of the site of the broadcasting station, the service required could not be afforded thereby, nor could such lines be converted to three-phase wire without rewiring; and that the nearest source of the necessary three-phase power available to appellant was its Darlington substation, distant some fourteen miles. Appellant was therefore not equipped to supply the required service and could do so only by constructing a three-phase line from its Darlington substation, at a cost, according to its testimony, of approximately $91,343.00. On the other hand, the evidence before the Commission was to the effect that the power company's source of 22 kv three-phase power nearest the site of the broadcasting station was its substation at Florence, some four and a half miles distant; and that it had, prior to the hearing, completed construction of the transmission line before mentioned from this source to the broadcasting station. There was also testimony to the effect that tied into the 110 kv bus at the power company's Florence sub-station were three 110 kv lines coming respectively from its substations at Hartsville and Marion and the Pinopolis plant of South Carolina Public Service Authority; that these lines together fed power into the Florence bus; and that in the event of outage on less than all three of these feeder lines the remaining lines or line would automatically keep the Florence bus energized. There was further testimony that in the event of failure of all three of these automatic sources, the power company's line to the broadcasting station could be served, by manual switching, from 22 kv lines at Darlington and Marion, by-passing the 110 kv substations at those points. According to the testimony of its Superintendent of Power, the initial sources of power available to the power company for delivery to its Florence substation were, in addition to its connections with South Carolina Public Service Authority, Virginia Electric & Power Company, Appalachian Electric Power Company, Duke Power Company and South Carolina Electric & Gas Company, its own hydro plants at Blewett and Tillery, and its steam plants at Lumberton, Cape Fear and Goldsboro, North Carolina; and a 220,000 kw steam plant, under construction at Wilmington, North Carolina, would be in operation, and a source of power to its system in South Carolina, by the summer of 1954. There was testimony on the part of appellant that at the time of the hearing its Darlington substation obtained its power from the power company, but that appellant had contracted with Central Electric Cooperative for service at a new substation on the latter's Darlington Marion Line; that Central obtains its power from the South Carolina Public Service Authority's Pinopolis plant and that of Clark's Hill Authority's Savannah River plant; and that, upon appellant's entry into the Central Cooperative system, it would be able to supply the required power not only from the Darlington substation, but also from a new substation proposed to be constructed some two and a half miles south of the broadcasting station.

In the light of this testimony, the Commission found as matters of fact, among others, the following:

1. That when the broadcasting company selected the site for its station there were no electric lines in place from which electricity of the quantity and character necessary to operate the broadcasting station could be supplied.

2. That at no time up to and including the date of the hearing was any electrical utility other than the power company supplying service similar to that to be supplied by the power company over the line which it had constructed pursuant to its contract with the broadcasting company.

3. That the public interest would be better served if the broadcasting station were supplied by the power company, rather than by appellant, because: (a) the former had many more generating sources and substations then in place and in use than appellant then had or would have after constructing the lines and substations which its testimony indicated were contemplated, and the power company was thus in position to insure a higher degree of continuity of service; and (b) the power company, unlike appellant, was subject to the regulatory powers vested in the Commission with respect to rates and quality and continuity of service.

4. That the extension of the power company's line to the broadcasting station was into territory "not receiving similar service from another electrical utility", and therefore no certificate of convenience and necessity was required.

Appellant's Exception No. 1, charging error on the part of the trial judge in refusing its motion for a jury trial, has been abandoned. The remaining exceptions charge error:

1. In holding that the power company was not required to obtain a certificate of convenience and necessity before extending its service to the broadcasting station;

2. In holding that appellant was not already in the territory and capable of rendering the service required by ...


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