Subchapter II. Jurisdiction and Powers
TITLE 26
Public Utilities
CHAPTER 1. PUBLIC SERVICE COMMISSION
Subchapter II. Jurisdiction and Powers
§ 201. General jurisdiction and powers.
(a) The Commission shall have exclusive original supervision and regulation of all public utilities and also over their rates, property rights, equipment, facilities, service territories and franchises so far as may be necessary for the purpose of carrying out the provisions of this title. Such regulation shall include the regulation of the rates, terms and conditions for any attachment (except by a governmental agency insofar as it is acting on behalf of the public health, safety or welfare) to any pole, duct, conduit, right-of-way or other facility of any public utility, and, in so regulating, the Commission shall consider the interests of subscribers, if any, of the entity attaching to the public utility's facility, as well as the interests of the consumer of the public utility service.
(b) Further, the Commission shall have exclusive original jurisdiction and regulation of every cable television system outside the boundaries of incorporated municipalities which on June 28, 1974, have the power either express or implied under their charters to grant franchises for a cable system, and the Commission shall have supervision and review jurisdiction and regulation over any action taken by incorporated municipalities, which on June 28, 1974, have the power either express or implied under their charters to grant franchises for a cable system, with respect to the regulation of cable television systems, including the grant of or failure to grant franchises for a cable system by such municipality or the terms of any franchise now or hereafter granted for a cable system by such a municipality or the conduct of any franchisee holding a franchise from such a municipality, provided that the Commission's original and review jurisdiction and regulation shall be conducted solely in accordance with the provisions of subchapter VI of this chapter.
(c)(1) In the exercise of supervision and regulation over public utilities, the Commission may, upon application or on its own motion, after notice and hearing, forbear from ("deregulate") in whole or in part, its supervision and regulation over some or all public utility products or services and over some or all public utilities where the Commission determines that a competitive market exists for such products and services and where the Commission finds that such deregulation will be in the public interest.
(2) Any application under this subsection shall, at a minimum, include specific proposal or proposals, supporting statements or testimony, an analysis of the effects on the utility's regulated customers and an implementation plan. The application shall affirmatively establish that the deregulation being considered will not adversely affect the availability, cost or quality of utility services provided to the utility's regulated customers.
(3) The Commission shall approve or disapprove any such deregulation applications within 180 days after submission thereof, except that, for good cause found, the Commission may enter an order extending this period for an additional 90 days.
(4) The Commission shall determine how a public utility shall account for such deregulated products or services (including cost allocations where found to be appropriate) so as to ensure that the utility's regulated customers neither benefit unduly from nor unduly provide a subsidy to the deregulated products or services; provided, that such accounting determination shall not thereafter be changed by the Commission except for good cause shown.
(5) In connection with any application under this subsection for forbearance from Commission supervision and regulation, the Commission shall find, among other relevant things, the following:
a. Whether a competitive market exists for the particular utility product or service being requested to be wholly or partly deregulated. Conditions and factors to be considered may include, but are not limited to, the following:
1. The existing or prospective market power of the utility with respect to its products or services for which deregulation is sought; and
2. If there are significant entry or exit costs or other barriers to potential competitors; and
3. If there is a reasonable basis to expect that prices of wholly or partly deregulated products or services will reflect the incremental costs of supply;
b. Whether any safeguards are necessary to prevent a material adverse effect on utility service quality or rate levels;
c. Whether or not an option to remain under the Commission's supervision and regulation should be made available for customers whose utility products and services would be deregulated by the proposal;
d. Whether or not the public utility shall unbundle each service or function on which a service depends to its fundamental elements and shall make those elements separately available to any customer whose utility service is being deregulated by the proposal under terms and conditions, including price, that are the same or comparable to those used by the public utility in providing its own service. The public utility shall not unreasonably discriminate between affiliated and unaffiliated providers of services in offering unbundled features, functions and capabilities; and
e. Whether the Commission should forbear from regulating competing providers of such products or services.
(6) Where the Commission has made a determination to forbear from its supervision and regulation under this section, the Commission shall have the ongoing right to review, examine and audit the books and records of the applicable utility, and the relevant books and records of any relevant nonregulated affiliate. This right shall be the same as the Commission's right of access to inspection and examination of the utility's regulated books, accounts and records and appropriate safeguards regarding disclosure of confidential information shall be provided.
(7) Thirty months after any approval of forbearance from regulation hereunder, the utility shall file a report with the Commission summarizing its activities for that wholly or partly deregulated activity during its first 24 months of operation. Such report shall, at a minimum, address the criteria that the Commission deemed relevant in approving the request to deregulate such product or service. The report shall also describe the service provider's investment during the previous 24 months. Such report shall also describe the level of planned investment over the next 5 years. The Commission may require that similar reports be submitted biannually thereafter.
(8) The Commission, after notice and hearing, may prospectively revoke or reverse any forbearance of regulation granted hereunder where it finds that doing so is in the public interest. Where the Commission revokes or reverses a prior decision made under paragraph (c)(1) of this section, the Commission shall determine that the current rates for the related products or services are just and reasonable or shall establish new rates that are just and reasonable.
(9) This subsection shall not apply to a telecommunications service provider for so long as such provider is governed under the provisions of subchapter VII-A, Chapter 1 of this title.
(d)(1) In the exercise of supervision and regulation over public utilities, the Commission may, upon application or on its own motion, after notice and hearing, alter, in whole or in part, its supervision and regulation over some or all public utility products or services and over some or all public utilities to the extent necessary to promote and sustain adequate service at just and reasonable rates where the Commission determines that alternatives to supervision and regulation including the competitive provision of such products and services are in the public interest. Alternatives include, but are not limited to, incentive regulation, earnings sharing, categorization of services for the purposes of pricing, price caps, price indexing, ranges of authorized returns and different returns for different services. The Commission is specifically authorized to depart from rate base, rate of return regulation when it is in the public interest and when such departure is found to promote just and reasonable rates.
(2) Any application under this subsection shall, at a minimum, include specific proposal or proposals, supporting statements or testimony, an analysis of the effects on the utility's regulated services provided to its customers and an implementation plan. The application shall affirmatively establish that the alteration of regulation will not adversely affect the availability, cost or quality of the regulated utility services provided to the utility's customers.
(3) The Commission shall approve or disapprove any such requests for alternative supervision and regulation within 180 days after submission thereof, except that, for good cause found, the Commission may enter an order extending this period for an additional 90 days.
(4) The Commission shall determine how a public utility shall account for such alternatives (including cost allocations where found to be appropriate) so as to ensure that public utility customers to which such alternatives are not made available neither benefit unduly from nor unduly provide a subsidy to public utility customers to whom such alternatives are made available; provided, that such accounting determination shall not thereafter be changed by the Commission except for good cause shown.
(5) The Commission, after notice and hearing, may prospectively revoke or reverse any alternative form of regulation granted hereunder where it finds that doing so is in the public interest. Where the Commission revokes or reverses a prior decision made under paragraph (d)(1) of this section, the Commission shall determine that the current rates for the related products or services are just and reasonable or shall establish new rates that are just and reasonable.
(6) This subsection shall not apply to a telecommunications service provider for so long as such provider is governed by the provisions of subchapter VII-A, Chapter 1 of this title.
47 Del. Laws, c. 254, § 2; 26 Del. C. 1953, § 121; 59 Del. Laws, c. 397, § 1; 65 Del. Laws, c. 227, § 1; 66 Del. Laws, c. 50, § 2; 68 Del. Laws, c. 61, § 1; 70 Del. Laws, c. 48, §§ 1, 2.;
§ 202. Limitations on jurisdiction of Commission.
(a) Except insofar as may be necessary to implement §§ 203A and 203B of this title regarding the establishment and administration of retail electric service territories, and except as may be necessary to implement § 203C and § 203D of this title regarding the issuance of certificates of public convenience and necessity for water and wastewater utilities, and the review authorized under § 122 of Title 16, the Commission shall not have any supervision or regulation over any public utility, or over the rates, property, property rights, equipment, facilities or franchises of any public utility that is municipally-owned or over any municipal electric company formed pursuant to Chapter 13 of Title 22.
(b) Except as may be necessary to implement §§ 203C and 203D of this title regarding the issuance of certificates of public convenience and necessity for water and wastewater utilities, and the review authorized under § 122 of Title 16, the Commission shall not have any jurisdiction over any public utility, water or wastewater district or water or wastewater authority created and operated pursuant to Title 9 and Title 16.
(c) The Commission shall have no jurisdiction over the operation of telephone service provided by cellular technology or by domestic public land mobile radio service or over the rates to be charged for such service or over property, property rights, equipment or facilities employed in such service.
(d) [Repealed.]
(e) Any building owner, engaged in a principal business which does not involve the provision of utility services, providing steam heat or refrigeration chilled water to a nonprofit entity occupying a building located in close proximity to the owner's building, shall not be considered a public utility.
(f) Except insofar as may be necessary to implement Chapter 10 of this title regarding the establishment of retail competition, the Commission shall have no supervision or regulation over any electric supplier.
(g) Except as provided in § 224 of this title, the Commission shall have no supervision or regulation over any electric cooperative the membership of which has voted to be exempt from regulation by the Commission in accordance with § 223 of this title.
(h) Notwithstanding any other provisions of this title, the Commission shall not have any supervisory or regulatory authority over wastewater utilities serving fewer than 50 customers in the aggregate.
(i)(1) Notwithstanding any other provision of law to the contrary, the Commission shall have no jurisdiction or regulatory authority over Voice over Internet Protocol ("VoIP") service, as defined in paragraph (i)(2) of this section, including but not limited to, the imposition of regulatory fees, certification requirements, rates, terms or other conditions of service.
(2) "Voice over Internet Protocol service" or "VoIP service" means any service that:
a. Enables real-time 2-way voice communications that originate or terminate from the user's location in Internet protocol or any successor protocol; and
b. Utilizes a broadband connection from the user's location.
(3) Nothing herein shall be construed to either mandate or prohibit the assessment of Enhanced 911 fees pursuant to Chapter 101 of Title 16 on VoIP service, or to mandate or prohibit the payment of any switched network access rates or other intercarrier compensation rates that may be determined to apply.
47 Del. Laws, c. 254, § 2; 26 Del. C. 1953, § 122; 57 Del. Laws, c. 735; 59 Del. Laws, c. 397, § 1; 61 Del. Laws, c. 469, § 1; 61 Del. Laws, c. 496, § 2; 62 Del. Laws, c. 419, § 1; 63 Del. Laws, c. 5, § 1; 64 Del. Laws, c. 342, §§ 2, 3; 66 Del. Laws, c. 50, § 3; 68 Del. Laws, c. 124, § 2; 68 Del. Laws, c. 299, § 3; 70 Del. Laws, c. 133, § 1; 72 Del. Laws, c. 10, § 6; 72 Del. Laws, c. 163, § 1; 72 Del. Laws, c. 402, § 5; 73 Del. Laws, c. 157, § 1; 74 Del. Laws, c. 317, §§ 3-5; 76 Del. Laws, c. 29, § 1.;
§ 203. .
Transferred.
§ 203A. Certificate of public convenience and necessity; abandonment or discontinuance of business, operations or service.
(a)(1) Subject to the provisions of subsection (b) of this section and §§ 102, 201, 202 and Chapter 10 of this title, and excluding electric suppliers, no individual, copartnership, association, corporation, joint stock company, agency or department of the State, cooperative, or the lessees, trustees or receivers thereof, shall begin the business of a public utility nor shall any public utility begin any extension of its regulated public utility business or operations without having first obtained from the Commission a certificate that the present or future public convenience and necessity requires or will require the operation of such regulated public utility business or extension.
(2) This section shall not be construed to require any public utility to secure such a certificate for any extension within the perimeter of any territory already served by it.
(3) The Commission, after hearing, on the complaint of any public utility claiming to be adversely affected by any proposed extension, may make such order and prescribe such terms and conditions with respect to the proposed extension as may be required by the public convenience and necessity.
(b)(1) If any individual, copartnership, association, corporation, joint stock company, agency or department of the State, cooperative, or the lessees, trustees or receivers thereof (or the predecessor in interest of any such person, party or legal entity), was in bona fide operation within this State on June 28, 1974, of any electronic communication in whole or in part by wire (other than telephone, including domestic public land mobile radio or telegraph service, system, plant or equipment) including, but not limited to, cable television service, system, plant or equipment, for public use, the Commission shall issue a certificate of public convenience and necessity authorizing such person, party or legal entity without further proceedings to continue operating the said service, system, plant or equipment, to the same extent as said operations were being operated on June 28, 1974, such certificate to identify by number and date of issuance the certificate under which the applicant is carrying on such operation, if the application for such certificate of public convenience and necessity is filed with the Commission on a form approved by the Commission within 120 days after June 28, 1974. Pending the determination of any such application the continuance of such operation without a certificate of public convenience and necessity shall be lawful.
(2) Interruptions of service in such operations over which such person, party or legal entity, or the predecessor in interest thereof, had no control, shall not be considered in determining whether or not there has been an abandonment of any such operations.
(3) In issuing any certificate of public convenience and necessity under this subsection, the Commission, in its discretion, may define or limit the territory or territories in this State within which the activities authorized by the certificate may be conducted, but in no case shall such territory or territories be smaller than the territory or territories in this State in which the applicant was in actual bona fide operation on June 28, 1974.
(4) The application for a certificate of public convenience and necessity under this subsection shall be verified and shall contain such information as the Commission deems necessary to show that the applicant was not engaged merely in isolated, incidental, intermittent, sporadic and infrequent operations.
(5) The Commission may adopt and approve such forms as it deems necessary for this purpose.
(c)(1) Subject to the provisions of Chapter 10 and § 706(d) of this title and excluding electric suppliers, no public utility shall abandon or discontinue, in whole or in part, any regulated public utility business, operations or services provided under a certificate of public convenience and necessity or otherwise which are subject to jurisdiction of the Commission without first having received Commission approval for such abandonment or discontinuance.
(2) Applications for such approval shall be made to the Commission in writing, verified by oath or affirmation and be in such form and contain such information as the Commission may from time to time require.
(3) The Commission shall approve any such application when it finds that the utility has met its burden of proving that the abandonment or discontinuance is reasonable, necessary and not unduly disruptive to the present or future public convenience and necessity.
(4) The Commission may make such investigation and hold such hearings in the matter as it deems necessary or appropriate, and may attach reasonable terms and conditions to the granting of such approval.
(5) If, within 60 days after the filing of such application, the Commission has not acted concerning the application, it shall be deemed to have been approved. The Commission may, within such 60-day period, set the matter for hearing, in which event the Commission shall render a decision concerning said application within 7 months from the date such application was filed or the application shall be deemed in fact and law to be approved, unless within said 7-month period the Commission for good cause shown shall enter an order extending the period for decision for a further reasonable time not to exceed 120 days.
(6) Nothing contained in this section shall be construed to require formal application for approval of abandonment or discontinuance of service to any individual customer or customer class where the basis for such abandonment or discontinuance is nonpayment of bills or other violation of the utility's rules, regulations and tariffs.
(7) The Commission may seek injunctive relief in the Court of Chancery to prevent any abandonment in violation of this subsection and in such proceeding shall not be required to post security for any temporary or preliminary injunction.
(d) As of the implementation dates specified in § 1003(b)(1) and (2) of this title [repealed], nothing contained in this section shall be construed to require application for approval of the abandonment or discontinuance of service by an electric supplier.
47 Del. Laws, c. 254, § 8; 48 Del. Laws, c. 371, § 13; 26 Del. C. 1953, § 162; 53 Del. Laws, c. 364, §§ 1-4; 54 Del. Laws, c. 38, § 1; 57 Del. Laws, c. 665, §§ 2, 3; 59 Del. Laws, c. 397, § 1; 64 Del. Laws, c. 150, § 1; 66 Del. Laws, c. 50, § 1; 72 Del. Laws, c. 10, §§ 7-9.;
§ 203B. Service territories for electric utilities.
(a) Subject to the provisions of § 202 of this title, the Commission shall, upon notice and after hearing, establish boundaries throughout the State within which public utilities providing retail electric service shall have the obligation and authority to provide retail electric service. All certificates of public convenience and necessity granted by the Commission shall be issued or amended to reflect such boundaries. Upon establishment, reestablishment or adjustment of any such boundaries the Commission shall cause maps to be issued designating and certifying the territorial boundaries within which such public utilities shall be authorized and obligated to provide service. In acting hereunder, except with respect to customers residing within the boundaries of a municipality which owns an electric utility or a municipal electric company formed pursuant to Chapter 13 of Title 22 and who, as of July 2, 1992, are served by another public utility, the Commission shall not authorize or obligate any public utility to provide retail electric service to any customer within the boundaries of a municipality which owns an electric utility or municipal electric company formed pursuant to Chapter 13 of Title 22 without its consent. Notwithstanding the provisions of this subsection or subsection (d) of this section, if such a municipality shall annex adjacent or adjoining territory, any retail electric customer of another public utility within such territory may be acquired by such municipality pursuant to Chapter 61 of Title 10. Nothing contained herein shall invalidate or otherwise affect any contract entered into on or before June 30, 1992, between any municipality and a public utility relating to the acquisition of retail electric customers within the boundaries of the municipality listing as of such date. In the event a municipality which owns an electric utility or a municipal electric company formed pursuant to Chapter 13 of Title 22 shall annex adjacent or adjoining territory whether or not such territory contains retail electric customers, upon notice to the Commission by such municipality, the Commission shall issue or revise maps previously issued to reflect such acquisition.
(b) In acting under this section, the Commission shall consider and account for as the primary factor, currently existing territories within which utility electric customers are being served at retail including the boundaries of municipalities which serve such customers. In acting further under this section, the Commission shall consider among other pertinent factors, which of 2 or more public utilities:
(1) Had distribution facilities in nearest proximity to a designated area as of July 1, 1992;
(2) Was the first to furnish retail service to, or in close proximity to, a designated area;
(3) Can install and/or upgrade its facilities to furnish service to a designated area with the smaller amount of additional investment; and
(4) Is demonstrably capable of providing adequate and reliable service to a designated area within a reasonable period of time and in a feasible manner.
In connection with any proceedings undertaken by the Commission pursuant to subsection (a) of this section and this subsection the Commission shall approve and implement agreements between 2 or more public utilities if such agreements are consistent with the public interest.
(c) In acting under subsection (b) of this section, the Commission shall give no consideration to the location or existence of transmission facilities.
(d) In establishing service territory boundaries under this section, the Commission shall provide that any customer which, as of the date such boundaries are set, was receiving retail electric service from a public utility other than the public utility within whose service territory such customer is located, shall continue to receive such service from the same public utility unless both public utilities agree that service shall be provided by the public utility to whom that service territory has been allocated; and further provided that the Commission may prohibit such a change whenever it determines, after notice and hearing, that such change will not be in the public interest.
(e) If the Commission, after notice and hearing, shall determine that service being furnished or proposed to be furnished by a public utility subject to its jurisdiction to a customer or prospective customer within its service territory is substantially inadequate and is not likely to be made adequate, or otherwise exceeds the capacity of that public utility to provide adequate service within a reasonable time, the Commission may authorize another public utility to provide service to such customer.
(f) After the establishment of retail electric service territories under this section, 2 or more public utilities subject to Commission jurisdiction may from time to time hereafter apply to the Commission for adjustment of their adjoining retail electric service territories, and, if the Commission determines, after notice and hearing, that such adjustment is in the public interest, it shall approve such adjustment and, to the extent required, cause revised maps to reflect such adjustment to be prepared.
(g) The exclusive retail electric service territories heretofore established by the Commission pursuant to this section shall continue as exclusive service territories for the transmission and distribution of electricity. Except as otherwise provided herein, each electric distribution company shall have the exclusive right to furnish transmission and distribution services to all electricity-consuming facilities located within its service territory and shall not furnish, make available, render or extend its transmission and distribution services to a consumer located within the service territory of another electric distribution company; provided that any electric distribution company may extend or construct its facilities in or through the service territory of another electric distribution company, if such extension or construction is necessary for such company to connect any of its facilities or to serve its customers within its own service territory. As of the implementation dates as set forth in § 1003(b)(1) and (2) of this title [repealed], there shall be no exclusive service territories for the supply of electricity, except as otherwise herein provided.
(h) Notwithstanding any other provision of this title:
(1) A retail electric customer has the right to lease or own (satisfied by partial ownership) facilities on its own property to transmit or distribute electricity to itself.
(2) Where retail electric customer-owned transmission and/or distribution facilities that, at any time prior to February 1, 1999, were located on property owned by such customer, and were used to transmit or distribute electricity to buildings, facilities or equipment on such property, and that retail electric customer sold or leased a portion of such property and/or buildings, facilities or equipment thereon to third parties, then that customer shall have the right to continue to own such facilities and to transmit or distribute electricity to both itself and to any such third parties, with separate metering for each third party. Furthermore, if such customer desires to expand such facilities to serve additional buildings, facilities or equipment or additions thereto on such property used by such third party, then that customer and the electric distribution company shall jointly determine the terms and conditions of the ownership, installation, operation and maintenance of the expanded facilities. Any disagreement in this regard shall be presented to the Commission for resolution. If the customer utilizes its own facilities to transmit or deliver electricity to any such third party, the customer shall not charge the third party any amount that exceeds its actual costs of providing such services.
(3) Any person shall have the right to lease or own transmission and/or distribution facilities to transmit or deliver electricity from an electric generation facility, which qualifies under the Public Utilities Regulatory Policy Act of 1978 [P.L. 95-617] or its successor, to its host customer on the same or on any immediately adjacent property. Should such person desire to have electricity transmitted or delivered to not more than 5 other nearby customers who are new customers or who have been receiving electricity through the then-existing facilities of an electric distribution company, such person must first contact the electric distribution company to jointly determine how such service shall be provided. Should agreement not be jointly reached, the matter shall be presented to Commission for resolution. The options that may be considered include the following:
a. The electric distribution company may continue to provide such service over its then-existing facilities at Commission-approved rates; or
b. New facilities may be installed by the electric distribution company to provide such service, in which case the customers shall reimburse the electric distribution company for the depreciated book value, plus removal costs less salvage value, of any then-existing facilities that will no longer be used by the electric distribution company. In this case, the regular Commission-approved rates shall not be applicable for such new facilities. Instead, a separate facilities charge rate will be developed and billed monthly to such customers, based upon the actual installed cost of such new facilities, including normal levels of operating expenses, taxes and return.
(i) For purposes of this section only, effective on the implementation dates set forth in § 1003(b)(1) and (2) of this title [repealed], the term "retail electric service" shall be construed to be synonymous with the term "electric transmission and distribution" and shall not include the generation, supply or sale of electricity itself.
66 Del. Laws, c. 50, § 1; 68 Del. Laws, c. 299, § 4; 72 Del. Laws, c. 10, § 10.;
§ 203C. Certificates of public convenience and necessity for water utilities.
(a) No person or entity (including municipalities, governmental agencies, and water authorities and districts created under Title 9 or Title 16) shall begin the business of a water utility nor shall any existing water utility begin any extension or expansion of its business or operations without having first obtained from the Commission a certificate that the present or future public convenience and necessity requires, or will be served by, the operation of such business or the proposed extension or expansion. The provisions of this section shall not apply to any municipality that has extended its boundaries by annexation as provided for in Chapter 1 of Title 22 provided the municipality operates a water utility that will be expanded or extended into the annexed territory and no certificate of public convenience and necessity shall exist for the annexed territory. The municipality shall promptly give notice to the Public Service Commission of the completion of such annexation.
(b) This section shall not be construed to require any water utility holding an existing certificate of public convenience and necessity to secure an additional certificate from the Commission for existing operations nor shall this section be construed to require an additional certificate for the extension or expansion of operations within a service territory for which a certificate has previously been granted.
(c) An application for a certificate of public convenience and necessity to begin, extend or expand the business of a water utility beyond the territory covered by any existing certificate shall be in writing, shall be in such form as determined by the Commission and shall contain the information specified in subsection (d) or (e) of this section.
(d) The Commission shall issue a certificate of public convenience and necessity if the applicant therefore has submitted, together with the application, the following:
(1) Evidence that all landowners of the proposed territory have been notified by certified mail, or its equivalent, of the filing of the application, such evidence consisting of:
a. A list provided by the United States Postal Service, or the alternate delivery service, of those to whom notice was sent and
b. Copies of materials returned to sender; and
(2) One of the following:
a. Evidence that the water in the proposed service area does not meet the regulations governing drinking water standards of the Department of Health and Social Services for human consumption; or
b. Evidence that the supply is insufficient to meet the projected demand.
(e) The Commission shall issue a certificate of public convenience and necessity if the applicant therefore has submitted, together with the application, the following:
(1) Evidence that all landowners of the proposed territory have been notified by certified mail, or its equivalent, of the filing of the application, such evidence consisting of:
a. A list provided by the United States Postal Service, or the alternate delivery service, of those to whom notice was sent and
b. Copies of all materials returned to sender; and 1 of the following:
1. A signed service agreement with the developer of a proposed subdivision or development, which subdivision or development has been duly approved by the respective county government;
2. One or more petitions requesting water service from the applicant executed by the landowners of record of each parcel or property to be encompassed within the proposed territory to be served;
3. In the case of an existing development, subdivision, or generally recognized unincorporated community, 1 or more petitions requesting water service from the applicant executed by the landowners of record of parcels and properties that constitute a majority of the parcels or properties in the existing development, subdivision, or unincorporated community; or
4. A certified copy of a resolution or ordinance from the governing body of a county or municipality that requests, directs, or authorizes the applicant to provide water utility services to the proposed territory to be served, which must be located within the boundary of such county or municipality.
(2) In the case of a new water utility, evidence that it possesses the financial, operational and managerial capacity to comply with all state and federal safe drinking water requirements and that it has, or will procure, adequate supplies of water to meet demand, even in drought conditions, by maintaining supply sufficient to meet existing and reasonably anticipated future peak monthly demands;
(3) Certification by the applicant that any proposed extension of service will satisfy the provisions of § 403 of this title; and
(4) If the Town Council of the Town of Ocean View adopts a resolution providing for water utility service to its residents and undertakes the construction of such service, the provisions contained in paragraph (e)(1) of this section shall not apply to or be required for the Town of Ocean View's application for a certificate of public convenience and necessity under this section.
(f) Notwithstanding any other provision of this section, a certificate of public convenience and necessity to begin, extend or expand the business or operations of a water utility will not be granted if the Commission finds that the applying water utility is unwilling or unable to provide safe, adequate and reliable water service to existing customers, or is currently subject to a Commission finding that the utility is unwilling or unable to provide safe, adequate and reliable water service to existing customers.
(g)(1) An applicant for a certificate of public convenience and necessity shall be deemed in compliance with the notification requirement set forth in paragraphs (d)(1) and (e)(1) of this section with respect to condominium units, as defined in the Delaware Unit Property Act, Chapter 22 of Title 25, upon providing certification signed by an authorized officer of the condominium association that:
a. The officer of the condominium association is properly authorized to sign the petition for water service, and
b. All unit owners have been provided notice of the application. A copy of the notice provided to unit owners shall accompany the certification.
(2) The Commission may establish alternative means of demonstrating compliance with the notification requirement set forth in this section, including verification that notification has been delivered to the land owners of the proposed territory to be served, subject to a finding that the appropriate internet accessible technology creating a record that the notification has been sent and the status of its receipt is employed by the United States Postal Service, and after soliciting input on the use of such technology from water utilities.
(h)(1) The Commission shall act on an application for a certificate of public convenience and necessity within 90 days of the submission of a completed application. For good cause shown, and if it finds that the public interest would be served, the Commission may extend the date of its action on an application for an additional period not to exceed 30 days.
(2) Any proceedings involving certificates of public convenience and necessity shall be conducted in accordance with the procedures set forth in subchapter III of Chapter 101 of Title 29.
(i) For applications submitted pursuant to paragraphs (e)(1)b.2. and (e)(1)b.3. of this section, any landowner of record whose parcel or property (or any part thereof) is located within the proposed territory to be served shall be entitled to opt out and have the landowner's parcel or property excluded from the proposed territory to be served. A request to opt out shall be submitted by any landowner of record prior to the issuance of a certificate of public convenience and necessity. In the case of a parcel with multiple landowners of record, a request to opt out may be rescinded or countermanded by the landowners of record holding, or vested with, a controlling interest in the parcel or property. Notwithstanding the opt-out provision in the preceding sentences, no such opt-out right shall apply to the Town of Dagsboro to implement the results of a special election held on April 27, 2002; that election voted to establish water services by contract with a neighboring municipality that has an established water utility service. Notwithstanding the objection and opt-out provisions contained in this subsection, if the Town Council of the Town of Ocean View adopts a resolution providing for water utility service to its residents and undertakes the construction of such service, the objection and opt-out provisions shall not be available to the residents of the Town of Ocean View.
(j) For purposes of this section, the phrase "landowner of record" shall mean each person or entity holding a fee ownership interest in a parcel of real property that would be encompassed within the proposed territory to be served. A landowner of record shall be determined as of the time of the filing of the application for a certificate of public convenience and necessity and may be identified by reference to public tax and public land records or relevant land conveyances. The phrase "landowners of the proposed territory" shall mean the landowners of record of the parcel or parcels to be encompassed within the proposed territory to be served. However, with respect to condominium units, as defined in the Delaware Unit Property Act, Chapter 22 of Title 25, the phrase "landowner of record" and "landowners of the proposed territory" shall be deemed to mean the governing body or authorized officers of any condominium association with authority to act on behalf of unit owners, unless the underlying real property on which such condominium units have been built has been leased, directly or indirectly, to unit owners and the underlying real property owner retains the power to bind the unit owners. A petition from a governing body or authorized officers of a condominium association shall comply with paragraph (g)(1) of this section.
(k) The Commission may undertake to suspend or revoke for good cause a certificate of public convenience and necessity held by a water utility. Good cause shall consist of:
(1) A finding made by the Commission of material noncompliance by the holder of the certificate with any provisions of Title 7, 16 or 26 dealing with obtaining water or providing water and water services to customers, or any order or rule of the Commission relating to the same; and
(2) The presence of such additional factors as deemed necessary by the Commission as outlined in subsection (l) of this section.
(l) Prior to July 1, 2001, the Commission shall establish rules for the revocation of a certificate of public convenience and necessity held by a water utility. Such regulations shall outline the factors, in addition to those outlined in subsection (k) of this section, which must be present for a finding of good cause for revocation of a certificate. Such additional factors shall include, but not be limited to, the following:
(1) A finding by the Commission that, to the extent practicable, service to customers will remain uninterrupted under an alternative water utility or a designated third party capable of providing adequate water service; and,
(2) To the extent practicable, the Commission should attempt to identify methods to mitigate any financial consequences to customers served by the utility subject to a revocation.
(m) The power to revoke a certificate of public convenience and necessity granted by this section shall not apply to a certificate held by a municipally-owned water utility or by a water district or water authority created and operated under Titles 9 and 16. In the case of water utilities that are public utilities subject to the jurisdiction of the Commission, the Commission shall have the authority to assess penalties under § 217 of this title.
(n) Notwithstanding anything in this section to the contrary, the power to grant a certificate of public convenience and necessity pursuant to this section to a water authority created under Title 16 shall be limited to the boundaries of the municipality or municipalities which created it unless the Commission is provided with a resolution passed by the governing body of that municipality or municipalities which requests that the certificate be granted.
72 Del. Laws, c. 402, § 6; 73 Del. Laws, c. 264, § 1; 74 Del. Laws, c. 86, § 1; 74 Del. Laws, c. 351, §§ 1, 2; 76 Del. Laws, c. 55, §§ 1-3, 6.;
§ 203D. Certificates of public convenience and necessity for wastewater utilities.
(a)(1) Except for municipalities, governmental agencies and wastewater authorities and districts, which are governed under subsection (b) of this section and wastewater utilities serving or to serve fewer than 50 customers in the aggregate, no person or entity shall begin the business of a wastewater utility nor shall any existing wastewater utility begin any extension or expansion of its business or operations without having first obtained from the Commission a certificate that the present or future public convenience and necessity requires, or will be served by, the operation of such business or the proposed extension or expansion.
(2) Except for municipalities, governmental agencies and wastewater authorities and districts, which are governed under subsection (b) of this section and wastewater utilities serving fewer than 50 customers in the aggregate, any person or entity already in the business of a wastewater utility as of June 7, 2004, shall by December 3, 2004, obtain from the Commission a certificate of public convenience and necessity for its existing service area. Such person or entity shall provide the Commission a description of its facilities and the area it serves and a schedule of rates currently charged its customers, in such form as the Commission may require. Such person or entity need not provide the information required by subsection (d) of the section, nor any other tariff information required by § 301 of this title or any other provision of this title at the time of their submission. A certificate shall be granted by the Commission to such persons or entities which provide the required information to the Commission, unless the Commission has actual knowledge at the time of the application for a certificate that the applicant is in material violation of any provisions of Title 7, 16 or 26 dealing with the provisions of wastewater services or there is a bona fide dispute as to the actual service territory served by such person or entity. The Commission shall attempt to expeditiously resolve any such dispute.
(b) Although municipalities, governmental agencies, and wastewater authorities or districts engaging in or desiring to engage in the business of a wastewater utility are not required to obtain a certificate of public convenience and necessity from the Commission for any existing or new service territory, these entities shall supply to the Commission a description of any existing service territory for wastewater service no later than October 4, 2004, and shall promptly give notice and a description of any extension of wastewater territory or new wastewater service territory to the Commission. Such entity shall not extend service in areas, which the Commission has granted a certificate of public convenience and necessity to another wastewater utility without receiving the approval of the Commission. Any wastewater utility shall not extend its territory into a service territory of a municipality, government agency or wastewater authority or district without the approval of such entity and then obtaining approval of a certificate of public convenience and necessity from the Commission under this section. A municipality desiring to provide wastewater service to any property outside its municipal boundary must file with the Commission a petition requesting wastewater service from the municipality executed by the landowner of record of such property.
(c) An application for a certificate of public convenience and necessity to begin, extend or expand the business of a wastewater utility shall be in writing, shall be in such form as determined by the Commission and shall contain the information specified in subsection (d) of this section.
(d) Except as provided for below, the Commission shall issue a certificate of public convenience and necessity if the applicant therefore has submitted, together with the application, the following:
(1) A signed service agreement with the developer of a proposed subdivision or development, which subdivision or development has been duly approved by the respective county government; or
(2) One or more petitions requesting wastewater service from the applicant executed by the landowners of record of each parcel or property to be encompassed within the proposed territory to be served; or
(3) In the case of an existing development, subdivision, or generally recognized unincorporated community, 1 or more petitions requesting wastewater service from the applicant executed by the landowners of record of parcels and properties that constitute a majority of the parcels or properties in the existing development, subdivision or unincorporated community; or
(4) A certified copy of a resolution or ordinance from the governing body of a county or municipality that requests, directs or authorizes the applicant to provide wastewater utility services to the proposed territory to be served, which must be located within the boundary of such county or municipality; and
(5) In the case of a new wastewater utility, evidence that it possesses the financial, operational and managerial capacity to serve the public convenience and necessity and to comply with all state and federal regulations.
In addition, in an application premised on paragraph (d)(3) of this section, the applicant shall submit evidence that the applicant sent or delivered notice of its application to the landowner of record of each parcel in the existing development, subdivision or unincorporated community that will be encompassed in the proposed territory to be served. The Commission shall prescribe the form of such notice and the manner for so notifying such landowners. In addition, in the case of an application premised on paragraph (d)(3) of this section, the Commission may deny the application if the Commission determines that the grant of a certificate would not serve the public convenience and necessity.
(e) Notwithstanding any other provision of this section, a certificate of public convenience and necessity to begin, extend or expand the business or operations of a wastewater utility will not be granted if the Commission finds that the applying wastewater utility is unwilling or unable to provide safe, adequate and reliable service to existing customers, or is currently subject to a Commission finding that the utility is unwilling or unable to provide safe, adequate and reliable service to existing customers.
(f) An applicant for a certificate of public convenience and necessity shall be deemed in compliance with the notification requirement set forth in subsection (c) of this section with respect to condominium units, as defined in the Delaware Unit Property Act, Chapter 22 of Title 25, upon providing certification signed by an authorized officer of the condominium association that:
(1) The officer of the condominium association is properly authorized to sign the petition for wastewater service; and
(2) All unit owners have been provided notice of the application.
A copy of the notice provided to unit owners shall accompany the certification.
(g)(1) The Commission shall act on an application for a certificate of public convenience and necessity within 90 days of the submission of a completed application. For good cause shown, and if it finds that the public interest would be served, the Commission may extend the date of its action on an application for an additional period not to exceed 30 days. However, if an application for a certificate of public convenience and necessity is filed prior to July 1, 2005, the Commission may extend the date of its action on such application for an additional period, not to exceed 90 days.
(2) Any proceedings involving certificates of public convenience and necessity shall be conducted in accordance with the procedures set forth in subchapter III of Chapter 101 of Title 29.
(h) For applications submitted pursuant to subsection (d) of this section, no certificate of public convenience and necessity shall be issued where a majority of the landowners of the proposed territory to be served object to the issuance thereof.
(i) For purposes of this section, the phrase "land owners of the proposed territory to be served" shall refer solely to those persons having fee ownership of the affected parcel of real property within the proposed territory to be served (as reflected by appropriate tax or land record documents) at the time that the application for a certificate of public convenience and necessity is submitted by the applicant to the Commission for consideration; provided, however, that with respect to condominium units, as defined in the Delaware Unit Property Act, Chapter 22 of Title 25, this phrase shall mean the governing body or authorized officers of any condominium association with authority to act on behalf of unit owners, unless the underlying real property on which such condominium units have been built has been leased, directly or indirectly, to unit owners and the underlying real property owner retains the power to bind the unit owners.
(j) The Commission may, for good cause, undertake to suspend or revoke a certificate of public convenience and necessity held by a wastewater utility. Good cause shall consist of:
(1) A finding made by the Commission of material noncompliance by the holder of the certificate with any provisions of Title 7, 16 or 26 dealing with the provision of wastewater services to customers, or any order or rule of the Commission relating to the same; or
(2) A finding by the Commission that the wastewater utility has failed in a material manner to provide adequate or safe wastewater service to customers as evidenced by inadequate customer service, insufficient investment in, or inadequate operation of, the system or otherwise; and
(3) A finding by the Commission that, to the extent practicable, service to customers will remain uninterrupted under an alternative wastewater utility or a designated third party capable of providing adequate wastewater service; and,
(4) A finding by the Commission that to the extent practicable, any financial consequences to customers served by the utility subject to a revocation are appropriately mitigated.
74 Del. Laws, c. 317, § 6; 76 Del. Laws, c. 57, §§ 1-3; 76 Del. Laws, c. 162, § 1.;
§ 204. Extension of utilities' facilities.
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 where, in the judgment of the Commission, such extension is reasonable and practicable and will furnish sufficient revenue to justify the construction and maintenance of the same, and when the financial condition of the public utility reasonably warrants the original expenditures required in order to make and operate such extension; provided, however, the Commission shall consider, among other things, the size and amount of additional and potential customers to be served, whether the new customers will contribute to any capital expenditures required by the extension and whether the public utility must borrow funds to provide the extension of service.
47 Del. Laws, c. 254, § 4; 26 Del. C. 1953, § 136; 59 Del. Laws, c. 397, § 1.;
§ 205. Reports by public utilities.
(a) The Commission may require every public utility to file with the Commission such annual and other periodic or special reports, at such times, in such form and of such content, and covering such period or periods of time, as the Commission may by rules and regulations or by order prescribe.
(b)(1) The Commission may require any public utility to file with it a copy of any report filed by such public utility with any state or federal department or regulatory body, including, but not limited to, copies of its Delaware and federal income tax returns.
(2) A public utility that is a subsidiary of a corporation that files consolidated state or federal income tax returns shall file with the Commission, when so requested by the Commission, pro forma Delaware and federal income tax returns based solely upon said public utility's operations in Delaware.
(c) All reports shall be made under oath or affirmation unless the Commission otherwise specifies.
47 Del. Laws, c. 254, § 3; 48 Del. Laws, c. 371, § 6; 26 Del. C. 1953, § 123; 59 Del. Laws, c. 397, § 1.;
§ 206. Investigations.
The Commission may investigate, upon its own initiative or upon complaint in writing, any matter concerning any public utility.
47 Del. Laws, c. 254, § 3; 26 Del. C. 1953, § 124; 59 Del. Laws, c. 397, § 1.;
§ 207. Access to, inspection and examination of utility's property, records, etc.
The Commission, by or through its members or duly authorized representatives, shall at all times have access to and the right to inspect and examine any and all books, accounts, records, memoranda, property, plant, facilities and equipment of public utilities. Every public utility shall furnish to the Commission, within such reasonable time as the Commission may order, any information with respect to its books, accounts, records, memoranda, property, plant, facilities, equipment, service, and operations, which the Commission may require in aid of any inspection, examination, inquiry, investigation, or hearing, or in aid of any determination of the value of its property, or any portion thereof, including copies of accounts, records, books, maps, inventories, appraisals, valuations, contracts, reports of engineers, and other data, records and papers; and shall grant to all authorized agents of the Commission access to its premises, property, plant, facilities and equipment and its books, accounts, records and memoranda when requested to.
47 Del. Laws, c. 254, § 4A; 48 Del. Laws, c. 371, § 9; 26 Del. C. 1953, § 125; 59 Del. Laws, c. 397, § 1.;
§ 208. Books, records, accounts, systems of accounts, etc. of utility.
(a)(1) The Commission may, after hearing, upon notice, by order in writing, require every public utility to make, keep, and preserve for such periods of time, such accounts, records of cost accounting procedures, correspondence, memoranda, papers, books and other records as the Commission may by rules and regulations or order prescribe as necessary or appropriate for purposes of the administration of this chapter. The Commission may prescribe systems of accounts and records to be kept by public utilities, or may classify public utilities and prescribe a system of accounts and records for each class, and the manner and form in which such accounts and records shall be kept.
(2) The accounting system of any public utility also subject to the jurisdiction of a federal regulatory body shall correspond, as far as practicable, to the system prescribed by such federal regulatory body. The Commission may require any such public utility to keep and maintain supplemental or additional accounts to those required by any such regulatory body.
(3) The Commission, after notice and opportunity for hearing, may determine by order the accounts in which particular expenditures and receipts shall be entered, charged or credited.
(b) Every public utility shall keep such books, accounts, papers, records and memoranda, as are required by the Commission, in an office within this State, and shall not remove the same, or any of them, from this State, except upon such terms and conditions as may be prescribed by the Commission. Such public utility, when required by the Commission, shall furnish to the Commission, within such reasonable time as it shall fix, certified copies of its books, accounts, papers, records and memoranda, relating to the business done by such public utility within this State.
47 Del. Laws, c. 254, § 4; 48 Del. Laws, c. 371, § 7; 26 Del. C. 1953, § 129; 59 Del. Laws, c. 397, § 1.;
§ 209. Standards, classifications, regulations, practices, measurements, services, property and equipment of public utility.
(a) The Commission may, after hearing, by order in writing:
(1) Fix just and reasonable standards, classifications, regulations, practices, measurements or services to be furnished, imposed, observed and followed thereafter by any public utility;
(2) Require every public utility to furnish safe and adequate and proper service and keep