McAfee & Taft litigator Phil Hart won reversal of a district court’s denial of an electric cooperative’s request that its competitor, a public utility company, be enjoined from providing electric service to residents of city on basis of permit issued by city’s governing body rather than having obtained a voter-approved franchise, with instructions to district court on remand to grant the injunction. Below is an excerpt from the reply brief.
Contrary to OG&E’s contention, OG&E Br., p. 1, this case does not present a “policy issue” respecting competition between electric suppliers. Nor does it implicate the Electric Restructuring Act of 1997. OG&E Br., p. 2. Nor is it a case in which OEC “…seeks to stifle competition and viable customer choices contrary to the pronounced public policy of the State of Oklahoma….” OG&E Br., p. 3.
Instead, the sole issue in this case is exactly as set forth at the outset of OEC’s Brief in Chief: whether a public utility company which wishes to occupy a city’s streets with its transmission and distribution lines to sell its utility services to the city’s residents can do so without obtaining a voter-approved franchise from the city’s electorate as provided in Section 5(a) of Article 18 of the Oklahoma Constitution. If, as OEC contends, the answer is that a voter-approved franchise must be obtained then the worthy objective of competition between OG&E and OEC in providing electric service to the residents of the City of Newcastle can only be achieved if and when OG&E acquires the right to compete by obtaining the requisite franchise.