{ "id": 793129, "name": "In the Matter of Mrs. Delora Dennis, Route 2, Box 478, Brevard, North Carolina 28712, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Thomas W. McGohey and Other Customers of Haywood Electric Membership Corporation, 505 Connestee Trail, Brevard, North Carolina 28712, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mrs. Carmeletta Moses, Route 68, Box 326, Tuckasegee, North Carolina 28783, Complainant v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Forrest Cole, Route 63, Bull Pen Road, Cashiers, North Carolina 28717, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Nantahala Power & Light Company and Haywood Electric Membership Corporation, Respondents", "name_abbreviation": "Dennis v. Duke Power Co.", "decision_date": "1995-07-28", "docket_number": "No. 246PA94", "first_page": "91", "last_page": "104", "citations": [ { "type": "official", "cite": "341 N.C. 91" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "442 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": -1 }, { "cite": "114 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527510 ], "year": 1994, "opinion_index": -1, "case_paths": [ "/nc-app/114/0272-01" ] }, { "cite": "54 ALR4th 667", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "4 ALR3d 594", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "13 ALR2d 1233", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "130 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "259 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560638 ], "year": 1963, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0371-01" ] }, { "cite": "446 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "77", "parenthetical": "no offer of proof, but evidence ascertainable from transcript; therefore, alleged error preserved for appellate review" } ], "opinion_index": 0 }, { "cite": "337 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550995 ], "year": 1994, "pin_cites": [ { "page": "310", "parenthetical": "no offer of proof, but evidence ascertainable from transcript; therefore, alleged error preserved for appellate review" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0298-01" ] }, { "cite": "326 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "49", "parenthetical": "failure to make offer of proof prevents determination of prejudice" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521528 ], "year": 1985, "pin_cites": [ { "page": "7", "parenthetical": "failure to make offer of proof prevents determination of prejudice" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0001-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "year": 1985, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "249 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "390" } ], "opinion_index": 0 }, { "cite": "296 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564743 ], "year": 1978, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0095-01" ] }, { "cite": "446 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "346", "parenthetical": "noting that the North Carolina cases applying the state and federal Constitutions' Equal Protection Clauses use the same test as the federal courts" } ], "opinion_index": 0 }, { "cite": "336 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535852 ], "year": 1994, "pin_cites": [ { "page": "680-81", "parenthetical": "noting that the North Carolina cases applying the state and federal Constitutions' Equal Protection Clauses use the same test as the federal courts" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0657-01" ] }, { "cite": "487 U.S. 450", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1775196 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "457-58" }, { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/us/487/0450-01" ] }, { "cite": "134 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "261 N.C 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573631 ], "year": 1964, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0384-01" ] }, { "cite": "385 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "325 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491830 ], "year": 1989, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0463-01" ] }, { "cite": "442 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1994, "pin_cites": [ { "page": "113" }, { "page": "113" }, { "page": "114" }, { "page": "114" }, { "page": "118" }, { "page": "113" }, { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527510 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "287" }, { "page": "287" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0272-01" ] } ], "analysis": { "cardinality": 1029, "char_count": 30259, "ocr_confidence": 0.707, "pagerank": { "raw": 1.1557852845706067e-07, "percentile": 0.5828835966884556 }, "sha256": "ab9c932210061c5ac87d2af574cccf5ab4617a4a0a2be4b3fbedfc42b67dd2ed", "simhash": "1:a98f508d5d09ae5a", "word_count": 4661 }, "last_updated": "2023-07-14T22:14:42.837437+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In the Matter of Mrs. Delora Dennis, Route 2, Box 478, Brevard, North Carolina 28712, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Thomas W. McGohey and Other Customers of Haywood Electric Membership Corporation, 505 Connestee Trail, Brevard, North Carolina 28712, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mrs. Carmeletta Moses, Route 68, Box 326, Tuckasegee, North Carolina 28783, Complainant v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Forrest Cole, Route 63, Bull Pen Road, Cashiers, North Carolina 28717, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Nantahala Power & Light Company and Haywood Electric Membership Corporation, Respondents" ], "opinions": [ { "text": "WHICHARD, Justice.\nThis case arose from four complaints filed in the North Carolina Utilities Commission (\u201cthe Commission\u201d) on behalf of over nine hundred electric power consumers who were customers of respondent Haywood Electric Membership Corporation (\u201cHaywood\u201d) in Haywood\u2019s Transylvania and Jackson County service areas. These consumers sought a transfer of their electrical service from Haywood to respondent Duke Power Company (\u201cDuke Power\u201d) or respondent Nantahala Power and Light Company (\u201cNantahala\u201d).\nOn 30 July 1990 Delora Dennis and approximately 640 other customers of Haywood filed a complaint against Haywood alleging that they had received inadequate and undependable electric service from Haywood. They requested reassignment to Duke Power.\nOn 12 September 1990 Thomas W. McGohey and approximately 229 other customers of Haywood filed a complaint against Haywood alleging inadequate service. They requested reassignment to Duke Power.\nIn January 1991 Carmeletta Moses filed a complaint against Haywood alleging inadequate service. Though this complaint does not appear in the record, the Commission\u2019s order directing that it be served does. She requested reassignment to Duke Power.\nOn 20 February 1991 Forrest Cole and approximately sixty other customers of Haywood filed a complaint against Haywood alleging inadequate or inefficient service. They requested reassignment to Nantahala.\nThe Public Staff intervened on behalf of the complainants. See N.C.G.S. \u00a7 6245(b), (g) (Supp. 1994). The North Carolina Electric Membership Corporation (\u201cNCEMC\u201d) also intervened. NCEMC is a generation and transmission cooperative that supplies wholesale bulk power for its twenty-seven member cooperatives, including Haywood. Carolina Power & Light intervened as an interested party.\nOn 18 April 1991 the Public Staff filed additional letters of complaint from Haywood\u2019s customers, including petitioner M-B Industries, Inc. (\u201cM-B Industries\u201d), a small manufacturing company in Rosman, North Carolina, with a work force of approximately two hundred people. Ed Morrow, president of M-B Industries, wrote its letter.\nOn 17 May 1991 the Commission, after a prehearing conference, filed a prehearing order that excluded the testimony of Gregory L. Booth, a witness for NCEMC, regarding the adverse economic impact on Haywood of a shift of customers from Haywood to other electric suppliers.\nThe Commission held public hearings on 21-22 May 1991 in Brevard and on 7-8 August 1991 in Raleigh. At these hearings forty-seven consumer witnesses testified. In its order of 5 October 1992, the Commission summarized the testimony. The witnesses complained, inter alia, of frequent and prolonged service outages caused by inadequate precaution against lightning and storms and by inadequate and nonuniform line-clearing procedures. Other complaints were that Haywood had responded ineffectively and arbitrarily to consumer problem reports, that it possessed inappropriate knowledge of consumer growth and usage patterns, and that there was inadequate communication and coordination between Haywood and its consulting engineer. The witnesses further complained of inadequate voltage levels and inappropriate voltage fluctuations that damaged heating equipment, water pumps, major electric appliances, and other electric equipment. They also complained of arbitrariness in Haywood\u2019s deposit procedures, credit checks, disconnection procedures, equal payment plans, and late payment assessments.\nEd Morrow described incidents of poor service at M-B Industries\u2019 two industrial manufacturing plants served by Haywood. Morrow complained of frequent outages. He identified motor losses due to dips in voltage and computer module losses due to surges. Morrow testified that M-B Industries\u2019 plants were forced to close due to power outages.\nThe Commission characterized the testimony from Haywood\u2019s consumers as \u201can unprecedented number of complaints requesting reassignment.\u201d In its order the Commission found that Morrow had testified to the difficulties M-B Industries\u2019 plants had had with Haywood\u2019s service. It found that despite numerous complaints by M-B Industries, Haywood had made only one improvement in its service, which was not optimal. The same lines and transformers installed in 1960 were still being used for M-B Industries\u2019 plants. The Commission further made specific findings detailing the respects in which Haywood\u2019s service to the other complaining consumers failed to comply with expected standards. It rejected Haywood\u2019s evidence offered to show that the service was adequate.\nBased on these findings, the Commission concluded that the electric service provided by Haywood to the complainants, which included M-B Industries and others, was inadequate and undependable and that Haywood\u2019s conditions of service and regulations, as applied to complainants and others, were arbitrary and unreasonably discriminatory. After reaching these conclusions, the Commission discussed possible remedies, the most severe of which would be \u201ca transferral of the entire service area to another supplier.\u201d The Commission adopted a remedy, however, that would permit Haywood a two-year grace period within which to implement proposed service changes. The Commission stated, \u201c[T]he new management of Haywood should be given a reasonable amount of time to implement the proposed changes in the troubled [corporation].\u201d\nThe Commission made one exception to its remedy of deferring action for two years. It ordered Haywood to cease and desist from serving M-B Industries and ordered Duke Power to begin serving M-B Industries. The order states:\nThe Commission... concludes that the best candidate for a transferral of a portion of the Haywood service area to another supplier is the M-B Industries plants. One plant is fifty feet away from an alternative supplier (Duke), its sister plant in the same area is already served by that alternative supplier with a satisfactory level of service, and the third plant (Flame Spray) is some 200 yards from Duke\u2019s lines. No other single customer in the area affects as many employees, and people, as these plants. Transferral of the M-B Industries plants from Haywood to Duke would relieve the load on the troubled Quebec substation. Transferral of the plants would also make it clear to Haywood, and particularly to the Board of Directors of Haywood, the seriousness with which the Commission views the service problems that have been occurring, and the Commission\u2019s determination to press for a resolution of the service problems throughout the Haywood service areas. The plants are apparently the only industrial plants in Transylvania County served by Haywood. It [M-B Industries] pays Haywood approximately $4,000 per month for the electric service.\nThe Court of Appeals reversed the Commission\u2019s order requiring Haywood to cease and desist from serving M-B Industries. It reasoned:\n[I]t is apparent. . . that the punitive effect on Haywood EMC of the transfer of its . . . largest commercial ratepayer was a major determinative factor in the Commission\u2019s decision to reassign M-B Industries and served as a ground for the Commission\u2019s decision to reassign M-B Industries while leaving the similarly affected residential consumers assigned to Haywood.\nIn re Dennis v. Duke Power Co., 114 N.C. App. 272, 287, 442 S.E.2d 104, 113 (1994). The Court of Appeals held this basis for the Commission\u2019s order unlawful because it could not find a legislative directive in N.C.G.S. \u00a7 62-110.2(d)(2) or elsewhere that would authorize the Commission to order a reassignment of a highly valuable customer based on the Commission\u2019s intent to punish Haywood and to convey to Haywood\u2019s management that the Commission viewed the situation before it as a serious one. Id. at 287-88, 442 S.E.2d at 113.\nThe Court of Appeals further held that the nontransfer of the residential complainants was within the Commission\u2019s discretion. Based on the whole record, the Court of Appeals concluded that there was sufficient evidence to sustain the nontransfer of these complainants. Id. at 289, 442 S.E.2d at 114. It declined to address the Public Staffs constitutional argument on this issue, which invoked the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution, because it held that the Commission erred in transferring M-B Industries to Duke Power. Id. at 289-90, 442 S.E.2d at 114.\nThe Court of Appeals also held that the Commission erred by excluding Gregory L. Booth\u2019s proffered testimony regarding the economic impact of a transfer on Haywood. Id. at 295-96, 442 S.E.2d at 118.\nOn 28 July 1994 this Court allowed M-B Industries\u2019 petition for writ of certiorari. On 5 October 1994 we allowed Duke Power, Nantahala, and the Public Staff\u2019s joint petition for writ of certiorari.\nM-B Industries, Duke Power, Nantahala, and the Public Staff argue that the Commission properly transferred electric service from Haywood to Duke Power. We agree, and accordingly we reverse the Court of Appeals on this issue. Nantahala argues that this Court now must address the constitutional argument deemed moot by the Court of Appeals as to whether the Commission erred in refusing to transfer the residential complainants from Haywood. We agree with Nantahala that because we are reversing the Court of Appeals, this issue is no longer moot, and we choose to address it. We agree with the Court of Appeals that the Commission did not err in transferring only M-B Industries, rather than all complainants, to Duke Power. We further hold that the nontransfer of the residential consumers does not violate either the Fourteenth Amendment to the United States Constitution or Article I, Section 19 of the North Carolina Constitution. M-B Industries, Duke Power, Nantahala, and the Public Staff also argue that the Commission properly excluded proffered testimony regarding the economic impact of the transfer on Haywood. We agree, and accordingly we reverse the Court of Appeals on this issue.\nThe first issue is whether the Commission erred in ordering the transfer of the electric service to M-B Industries\u2019 plants from Haywood to Duke Power. The standard of review for decisions of the Commission is as follows:\nThe court may affirm or reverse the decision of the Commission, declare the same null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission\u2019s findings, inferences, conclusions or decisions are:\n(1) In violation of constitutional provisions, or\n(2) In excess of statutory authority or jurisdiction of the Commission, or\n(3) Made upon unlawful proceedings, or\n(4) Affected by other errors of law, or\n(5) Unsupported by competent, material and substantial evidence in view of the entire record as submitted, or\n(6) Arbitrary or capricious.\nN.C.G.S. \u00a7 62-94(b) (1989). The appellate court must \u201creview the whole record or such portions thereof as may be cited by any party and due account shall be taken of the rule of prejudicial error.\u201d N.C.G.S. \u00a7 62-94(c). We have interpreted this statute to mean that the court must \u201cassess whether the Commission\u2019s order is affected by errors of law, and . . . determine whether there is substantial evidence, in view of the entire record, to support the position adopted.\u201d State ex rel. Utilities Commission v. Thornburg, 325 N.C. 463, 472, 385 S.E.2d 451, 456 (1989).\nThe statute governing the Commission\u2019s power to transfer electric service from one supplier to another provides:\nThe Commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and after hearing, if a hearing is requested by any affected electric supplier or any other interested party, to order any electric supplier which may reasonably do so to furnish electric service to any consumer who desires service from such electric supplier at any premises being served by another electric supplier, or at premises which another electric supplier has the right to serve pursuant to other provisions of this section, and to order such other electric supplier to cease and desist from furnishing electric service to such premises, upon finding that service to such consumer by the electric supplier which is then furnishing service, or which has the right to furnish service, to such premises, is or will be inadequate or undependable, or that the rates, conditions of service or service regulations, applied to such consumer, are unreasonably discriminatory.\nN.C.G.S. \u00a7 62-110.2(d)(2) (Supp. 1994). Under this statute the Commission, upon finding that the service of an electric supplier is inadequate or undependable or unreasonably discriminatory, may order the transfer of electric service to another supplier.\nHere, as the Court of Appeals correctly noted, the record shows that \u201cthe poor quality of electric service arising from the \u2018troubled Quebec substation\u2019 affected the area\u2019s individual residential consumers as well as the facilities at M-B Industries.\u201d Dennis, 114 N.C. App. at 287, 442 S.E.2d at 113. The Commission specifically stated that Morrow had testified to the difficulties that M-B Industries, a complainant, had experienced. It concluded as a matter of law that \u201cthe electric service provided by Haywood EMC to the complainants and to the public witnesses in this proceeding is inadequate and undependable.\u201d The statute therefore allows the Commission to order the transfer of electric service of M-B Industries from Haywood to Duke Power.\nIt is clear from the order that it was not the Commission\u2019s sole intention to punish Haywood or to make clear to Haywood that it viewed the problems as serious ones. Viewed as a whole, the order stated several other reasons for making the transfer. The order does not evince a punitive intent; rather, the fashioning of the remedy was based on sound reasoning, aimed at producing better electric service for all complainants. The Commission stated that the transfer would provide relief for the entire area serviced by Haywood. The transfer to Duke Power could be effectuated easily because of the proximity of M-B Industries\u2019 plants to Duke Power\u2019s service lines. Further, the Commission noted that improved electric service to M-B Industries would benefit its numerous employees and customers. Finally, though the Commission recognized that the most severe remedy would be the transfer of the entire area to another supplier, it fashioned a remedy that would \u201crelieve the load\u201d placed on Haywood while it worked to improve its service to the other complaining consumers. That the Commission commented on the size of M-B Industries as a customer of Haywood and on the incidental implication of impressing Haywood with the seriousness with which it viewed the problems does not render the order invalid under the statute. Because the Commission concluded \u2014 based on substantial evidence in view of the whole record \u2014 that the electric service provided by Haywood to M-B Industries was inadequate and undependable, it could order the transfer under the statute, and its reasons for doing so were not primarily punitive. Accordingly, we reverse the Court of Appeals on this issue and remand the case for reinstatement of the Commission\u2019s order.\nThe next issue is whether the Commission properly exercised its authority by transferring only M-B Industries, rather than all complainants, to Duke Power. The Court of Appeals held that N.C.G.S. \u00a7 62-110.2(d)(2) allows the Commission discretion in determining its remedy. We agree.\nN.C.G.S. \u00a7 62-110.2(d)(2) grants the Commission \u201cthe authority and jurisdiction\u201d to transfer electric service from one supplier to another upon finding either that the service to the complaining consumer is \u201cinadequate or undependable\u201d or that \u201cthe rates, conditions of service or service regulations, applied to such consumer, are unreasonably discriminatory.\u201d The statute does not mandate the transfer; rather, it gives the Commission the authority and jurisdiction to make the transfer after certain determinations. The language of the statute allows the Commission discretion in fashioning a remedy; therefore, we hold that the Commission may transfer only M-B Industries, rather than all complainants, as long as its action is not capricious or arbitrary. N.C.G.S. \u00a7 62-94(b)(6); see Utilities Commission v. Coach Co., 261 N.C 384, 391, 134 S.E.2d 689, 695 (1964). As discussed above, one of the Commission\u2019s reasons for transferring only M-B Industries was that such a remedy would reduce Haywood\u2019s service demands, thereby facilitating its effort to improve its service to the other complainants. In addition, the Commission ordered Haywood to improve its facilities and its customer services and to file progress reports with the Commission detailing its efforts. There was nothing arbitrary or capricious in the Commission\u2019s action. We therefore affirm the Court of Appeals insofar as it affirmed the Commission\u2019s order in this regard.\nThe Public Staff also argued to the Court of Appeals that the Commission\u2019s order violated the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. The Court of Appeals considered this issue moot in light of its holding that the Commission erred in transferring M-B Industries. Because we are reversing that holding of the Court of Appeals, we will address the issue.\nThe Public Staff argues that the Commission\u2019s order unreasonably discriminates against the other complainants whose electric service was found to be inadequate, undependable, or unreasonably discriminatory by failing to order a transfer of their electric service to another electric supplier. It contends that the record does not support a rational basis for treating them differently from M-B Industries. We disagree.\nWe assume, without deciding, that the order creates a classification, subject to equal protection scrutiny. The objective of the Commission\u2019s order was to restore acceptable electric service to all complainants. By transferring only M-B Industries, the Commission hoped to \u201crelieve the load on the troubled Quebec substation\u201d and to, allow Haywood \u201ca reasonable amount of time to implement the proposed changes.\u201d We conclude that the order was rationally related to the objective of restoring acceptable electric service to all complainants. See Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 457-58, 101 L. Ed. 2d 399, 409 (1988) (\u201cUnless a statute provokes \u2018strict judicial scrutiny\u2019 because it interferes with a \u2018fundamental right\u2019 or discriminates against a \u2018suspect class,\u2019 it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose.\u201d); State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 336 N.C. 657, 680-81, 446 S.E.2d 332, 346 (1994) (noting that the North Carolina cases applying the state and federal Constitutions\u2019 Equal Protection Clauses use the same test as the federal courts). The order therefore does not violate the other complainants\u2019 right to equal protection of the law.\nThe next issue is whether the Commission erred by excluding the testimony of Gregory L. Booth regarding the adverse economic impact of a transfer of consumers from Haywood to other electric suppliers. M-B Industries, Duke Power, Nantahala, and the Public Staff argue that this issue is not properly preserved for appellate review because NCEMC, which offered the testimony, made no offer of proof. See N.C.G.S. \u00a7 1A-1, Rule 43(c) (1990) (\u201cIn an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given.\u201d); see also N.C. R. App. P. 10(b)(1) (providing procedure for preserving questions for appellate review). We disagree.\nThis Court has held that a party must preserve the exclusion of evidence for appellate review by making a specific offer of proof unless the significance of the evidence is ascertainable from the record. Currence v. Hardin, 296 N.C. 95, 100, 249 S.E.2d 387, 390 (1978). Further, \u201cthe essential content or substance of the witness\u2019 testimony must be shown before [this Court] can ascertain whether prejudicial error occurred.\u201d State v. Simpson, 314 N.C 359, 370, 334 S.E.2d 53, 60 (1985); see also Nelson v. Patrick, 73 N.C. App. 1, 7, 326 S.E.2d 45, 49 (1985) (failure to make offer of proof prevents determination of prejudice). Here, in prefiled proffered testimony, Booth stated that he would \u201cevaluate the financial impact which will be imposed on Haywood EMC and its remaining customers if any or all of the service area is transferred to another utility.\u201d He stated that he would testily to his conclusion that \u201c[t]here will be significant and irreparable harm imposed on Haywood EMC and its member/ consumers and on NCEMC and its other members if any or all of the service area is transferred to another power supplier.\u201d This description of the excluded testimony is sufficiently specific for this Court to determine whether it was properly excluded and if not, whether its exclusion was prejudicial. See State v. Bryant, 337 N.C. 298, 310, 446 S.E.2d 71, 77 (1994) (no offer of proof, but evidence ascertainable from transcript; therefore, alleged error preserved for appellate review). We therefore consider this question properly preserved for review.\nWe note that Haywood on this appeal raises for the first time a constitutional argument on this issue. It contends that a state law, such as N.C.G.S. \u00a7 62-110.2, that allows the taking of an electric cooperative\u2019s consumers without consideration of the economic impact on the federally funded cooperative violates the Supremacy Clause of the United States Constitution. This constitutional issue is not preserved for appellate review because it was not raised in and addressed by the Commission, nor was it argued to the Court of Appeals. \u201cIt is a well established rule of this Court that it will not decide a constitutional question which was not raised or considered in the court below.\u201d Johnson v. Highway Commission, 259 N.C. 371, 373, 130 S.E.2d 544, 546 (1963). We therefore will not address this argument.\nThe Court of Appeals held that exclusion of this proffered testimony was error based on public policy grounds and the liberal admissibility standards for evidence in the Commission\u2019s proceedings. Dennis, 114 N.C. App. at 296, 442 S.E.2d at 118. M-B Industries, Duke Power, Nantahala, and the Public Staff argue, and we agree, that evidence of the economic impact on Haywood of the transfer of a customer to another electric supplier is not relevant under N.C.G.S. \u00a7 62-110.2(d)(2). N.C.G.S. \u00a7 62-110.2(d)(2) provides as grounds for transfer either that the electric service to a consumer is or will be inadequate or undependable or that the rates, conditions of service, or service regulations are unreasonably discriminatory. The economic impact of a transfer on an electric supplier is not delineated as a ground for consideration in determining whether a transfer to another electric supplier is authorized. Further, it is obvious that rarely, if ever, would an electric supplier benefit economically from the loss of a customer. Such a factor therefore is irrelevant to the Commission\u2019s determination of a remedy. See N.C.G.S. \u00a7 62-65(a) (1989) (\u201cThe Commission may exclude incompetent, irrelevant, immaterial and unduly repetitious or cumulative evidence.\u201d). We hold that the Commission properly excluded Booth\u2019s testimony.\nAccordingly, we affirm the Court of Appeals\u2019 decision insofar as it affirmed the Commission\u2019s transfer of only M-B Industries, rather than all residential complainants, to Duke Power. We reverse that part of the Court of Appeals\u2019 decision that reversed the Commission\u2019s order transferring electric service of M-B Industries from Haywood to Duke Power and that reversed the Commission\u2019s ruling on the exclusion of the economic impact testimony. The case is remanded to the Court of Appeals with instructions to remand to the Utilities Commission for reinstatement of the Commission\u2019s order of 5 October 1992 transferring electric service to M-B Industries from Haywood to Duke Power.\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Sam J. Ervin, IV, for petitioner-appellant M-B Industries, Inc.", "Jerry W. Amos for respondent-appellee Haywood Electric Membership Corporation.", "Duke Power Company, by Steve C. Griffith, Jr., Vice Chairman and General Counsel, and William Larry Porter, Deputy General Counsel; and Kennedy Covington Lobdell & Hickman, L.L.P, by Myles E. Standish, for respondent-appellant Duke Power Company.", "Hunton & Williams, by Edward S. Finley, Jr., and James L. Hunt for respondent-appellant Nantahala Power and Light Company.", "Robert P. Gruber, Executive Director, Public Staff, and Antoinette R. Wike, Chief Counsel, by A.W. Turner, Jr., and Victoria O. Hauser, Staff Attorneys, for intervenor-appellant Public Staff.", "North Carolina Electric Membership Corporation, by Thomas K. Austin, Associate General Counsel, for intervenor-appellee North Carolina Electric Membership Corporation." ], "corrections": "", "head_matter": "In the Matter of Mrs. Delora Dennis, Route 2, Box 478, Brevard, North Carolina 28712, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Thomas W. McGohey and Other Customers of Haywood Electric Membership Corporation, 505 Connestee Trail, Brevard, North Carolina 28712, Complainants v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mrs. Carmeletta Moses, Route 68, Box 326, Tuckasegee, North Carolina 28783, Complainant v. Duke Power Company and Haywood Electric Membership Corporation, Respondents and Mr. Forrest Cole, Route 63, Bull Pen Road, Cashiers, North Carolina 28717, and Other Customers of Haywood Electric Membership Corporation, Complainants v. Nantahala Power & Light Company and Haywood Electric Membership Corporation, Respondents\nNo. 246PA94\n(Filed 28 July 1995)\n1. Energy \u00a7 3 (NCI4th)\u2014 electric service transferred for industrial customers \u2014 transfer not punitive\nThe Utilities Commission did not err in ordering the transfer of electric service to industrial plants from Haywood Electric Membership Corporation to Duke Power where the Commission concluded, based on substantial evidence in view of the whole record, that the service provided by Haywood was inadequate and undependable. Furthermore, the Commission\u2019s reasons for transferring service were not primarily punitive where the transfer would provide relief for the entire area serviced by Haywood; the transfer to Duke could be effectuated easily because of the proximity of the industrial plants to Duke\u2019s service lines; improved electric service to the plants would benefit their numerous employees and customers; and, though the Commission recognized that the most severe remedy would be the transfer of the entire area to another supplier, it fashioned a remedy which would relieve the load placed on Haywood while it worked to improve its service to the other complaining consumers. N.C.G.S. \u00a7 62-110.2(d)(2).\nAm Jur 2d, Electricity, Gas, and Steam \u00a7 14.\nSpecial requirements of consumer as giving rise to implied contract by public utility to furnish particular amount of electricity, gas, or water. 13 ALR2d 1233.\nLiability of electric power or light company to patron for interruption, failure, or inadequacy of power. 4 ALR3d 594.\nLiability of electric utility to nonpatron for interruption or failure of power. 54 ALR4th 667.\n2. Energy \u00a7 3 (NCI4th)\u2014 electric service transferred for industrial but not residential customers \u2014 no error\nThe Utilities Commission properly exercised its authority by transferring only an industrial user and respondent\u2019s largest customer rather than all complainants to Duke Power, since N.C.G.S. \u00a7 62-110.2(d) (2) allows the Commission discretion in determining its remedy, and the Commission\u2019s action was not arbitrary or capricious.\nAm Jur 2d, Electricity, Gas, and Steam \u00a7\u00a7 10-12.\n3. Constitutional Law \u00a7 89 (NCI4th); Energy \u00a7 2 (NCI4th)\u2014 industrial user treated differently from residential users\u2014 no denial of equal protection\nThe order of the Utilities Commission transferring electric service to industrial plants from Haywood Electric Membership Corporation to Duke Power without transferring service to all other customers did not violate the other customers\u2019 right to equal protection of the law, since, by transferring the industrial user, the Commission hoped to \u201crelieve the load on the troubled . . . substation\u201d and to allow Haywood \u201ca reasonable amount of time to implement the proposed changes,\u201d and the order was therefore rationally related to the objective of restoring acceptable electric service to all complainants.\nAm Jur 2d, Electricity, Gas, and Steam \u00a7 38.\n4. Energy \u00a7 3 (NCI4th)\u2014 transfer of consumer from one supplier to another \u2014 economic impact \u2014 testimony properly excluded\nThe Utilities Commission properly excluded testimony by a witness regarding the adverse economic impact of a transfer of consumers from Haywood Electric Membership Corporation to other electric suppliers, since the economic impact of a transfer on an electric supplier is not delineated in N.C.G.S. \u00a7 62-110.2(d)(2) as a ground for consideration in determining whether a transfer to another electric supplier is authorized; it is obvious that rarely, if ever, would an electric supplier benefit economically from the loss of a customer; and such factor is therefore irrelevant to the Commission\u2019s determination of a remedy.\nAm Jur 2d, Electricity, Gas, and Steam \u00a7 29.\nOn writ of certiorari pursuant to N.C.G.S. \u00a7 7A-32(b) and N.C. R. App. P. 21(a)(2) to review a unanimous decision of the Court of Appeals, 114 N.C. App. 272, 442 S.E.2d 104 (1994), affirming in part and reversing in part an order entered 5 October 1992 by the North Carolina Utilities Commission. Heard in the Supreme Court 13 April 1995.\nByrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Sam J. Ervin, IV, for petitioner-appellant M-B Industries, Inc.\nJerry W. Amos for respondent-appellee Haywood Electric Membership Corporation.\nDuke Power Company, by Steve C. Griffith, Jr., Vice Chairman and General Counsel, and William Larry Porter, Deputy General Counsel; and Kennedy Covington Lobdell & Hickman, L.L.P, by Myles E. Standish, for respondent-appellant Duke Power Company.\nHunton & Williams, by Edward S. Finley, Jr., and James L. Hunt for respondent-appellant Nantahala Power and Light Company.\nRobert P. Gruber, Executive Director, Public Staff, and Antoinette R. Wike, Chief Counsel, by A.W. Turner, Jr., and Victoria O. Hauser, Staff Attorneys, for intervenor-appellant Public Staff.\nNorth Carolina Electric Membership Corporation, by Thomas K. Austin, Associate General Counsel, for intervenor-appellee North Carolina Electric Membership Corporation." }, "file_name": "0091-01", "first_page_order": 125, "last_page_order": 138 }