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Official Opinion 94-7

Official Opinion 94-7

February 22, 1994
To: 

Georgia Public Service Commission

Re: 

There is no statutory basis on which the Georgia Public Service Commission can exercise jurisdiction over cellular telecommunication services as either a radio service or public telephone service.

This is in response to your request for my official opinion regarding whether the Georgia Public Service Commission (hereinafter "GPSC") has jurisdiction to regulate companies which provide cellular telecommunication services within this state. In particular, you have asked that I clarify my Official Opinion dated September 28, 1983 (1983 Op. Att'y Gen. 83-65). That Opinion concluded that the GPSC does not have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a radio utility, but may have jurisdiction to regulate such services where the company providing the service operates as a telephone utility. Id.

Upon revisiting this issue pursuant to your latest request, it is apparent that the threshold inquiry centers on the nature of the service provided rather than the nature of the provider of the service. See 1976 Op. Att'y Gen. 76-91 (the fact that a utility is providing some regulated services does not mean all of its activities fall under GPSC jurisdiction)(citing Georgia Power Co. v. Georgia Pub. Ser. Comm'n, 211 Ga. 223, 228 (1954)). In addition, the type of service provided is the controlling issue in the statutory definitions of both a radio utility and telephone company. A radio utility is any person who controls, operates or manages a facility which provides a "radio service" to the public. O.C.G.A. § 46-6-2. A telephone company is any person owning or operating a facility used to furnish "telephone service" within this state. O.C.G.A. § 46-5-62. The 1983 Attorney General Opinion concluded that

cellular service is not a radio service subject to the jurisdiction of the GPSC. I am not aware of any changes in the law which would alter that conclusion. However, that Opinion did not address the question of whether cellular service is considered a "telephone service" as that term is used in the Code.

The GPSC only has "such powers as the legislature has expressly, or by fair implication, conferred upon it." Georgia Power Co. v. Georgia Pub. Ser. Comm'n, 211 Ga. 223, 226 (1954). In granting general jurisdictional powers to the GPSC, the Georgia Code states that the authority and control of the Commission shall extend to "persons owning, leasing, or operating a public telephone service . . . in this state." O.C.G.A. § 46-2-21(b)(4). Therefore, if cellular telecommunication service is included in the definition of public "telephone service," the GPSC would have jurisdiction to regulate any person providing such a service. However, after reviewing the applicable statutes and case law, it is my opinion that cellular telecommunication service is not a telephone service and, as such, not subject to regulation by the GPSC.

The term "telephone service" is not defined by the legislature with respect to its usage in the general jurisdictional section of the Code. In the absence of a specific definition, it is a general rule of statutory construction that all words, except words of art, are given their ordinary meaning. City of Roswell v. City of Atlanta, 261 Ga. 657 (1991)(citing O.C.G.A. § 1-3-1(b)). However, one portion of a statute cannot be lifted out of context and construed without reference to the rest of the statute. Tolleson Lumber Co. v. Kirk, 200 Ga. App. 689, 691 (1991)(citation omitted). When the same word is used in different parts of the same statute, it is generally presumed to have the same meaning throughout. Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934).

While not defined in the general jurisdictional section, the term "telephone service" is defined in the Rural Telephone Cooperative Act (hereinafter "RTC Act"), O.C.G.A. § 46-5-60 et seq., of the Georgia public utility statute. The RTC Act defines "telephone service" as "any communication service whereby voice communication through the use of electricity and wire connections between the transmitting and receiving apparatus is the principal intended use thereof." O.C.G.A. § 46-5-62(5)(emphasis added). The basis for cellular technology is radio transmissions over a specified wavelength designated and assigned by the Federal Communications Commission (hereinafter "FCC"). See 47 C.F.R. § 22.902. Since cellular communication principally utilizes radio transmissions rather than wire and electricity between the transmitting and receiving apparatus, it does not fall within the statutory definition of "telephone service" in the RTC Act or, by implication, the general jurisdictional section of the Code.

In addition, the FCC classifies cellular service as a radio service rather than a telephone service. The rules of the FCC governing cellular services are found at 47 C.F.R. § 22.900 et seq. and are entitled Domestic Public Cellular Radio Telecommunications Service Rules. (Emphasis added). The FCC allocates a specified radio frequency spectrum for use by cellular systems. 47 C.F.R. § 22.902. The treatment accorded to cellular communications by the FCC, while not conclusive, is persuasive in this analysis.

Therefore, it is my official opinion that cellular telecommunication service is not a "telephone service" as that term is used in the Georgia statute, and the GPSC does not have jurisdiction to regulate providers of cellular telecommunication services as persons owning or operating a public telephone service.

Prepared by:

JOHN E. HENNELLY Staff Attorney