CURETON, J., dissents in a separate opinion.
CURETON, J.,Dissenting:
Unlike the majority, I would find BellSouth Telecomms., Inc. v. City of Orangeburg, 337 S.C. 35, 522 S.E.2d 804 (1999), applies to this action. I therefore respectfully dissent.
In BellSouth, the telephone company brought a declaratory judgment action seeking to invalidate the City’s 1993 franchise ordinance, which imposed a franchise fee on BellSouth’s use of the City’s public streets. Id. at 38, 522 S.E.2d at 805. Prior to the enactment of the 1993 ordinance, the parties operated under an 1894 franchise ordinance which permitted BellSouth to use the streets exempt from taxes or fees for a period of five years. Id. at 39, 522 S.E.2d at 806.1 BellSouth contended the 1993 ordinance violated a statute authorizing public utilities to maintain and operate their lines over public roads. Id. at 43, 522 S.E.2d at 808. Our supreme court determined the *496statutory authorization must be read in light of article VIII, § 15, of the state constitution, which provides: “No law shall be passed by the General Assembly granting the right to construct and operate in a public street ... without first obtaining the consent of the governing body of the municipality....” Id. at 43-44, 522 S.E.2d at 808. The court also discussed S.C.Gode Ann. § 5-7-30 (Supp.1998), which specifically delegates to municipalities the power to grant franchises for the use of public roads and charge fees for the franchises. BellSouth, 337 S.C. at 44, 522 S.E.2d at 808-09.
The court recognized, however, that the constitutional provision did not permit municipalities to oust a utility by imposing fees for the continuation of a franchise. Id. at 44, 522 S.E.2d at 808. The court concluded, however, that the imposition of the fee, 5% of BellSouth’s gross revenue earned -within the City and a one-time administrative fee, did not constitute an ouster. Id.
In this case, as a result of annexation, SCE & G is using the Town of Awendaw’s roads to service its lines. Unlike in BellSouth, the parties were not already operating under a franchise ordinance. I would find, however, that the critical inquiry in this case is not whether a franchise ordinance existed prior to the imposition of the franchise fee. See Athens-Clarke County v. Walton Elec. Membership Corp., 265 Ga. 229, 454 S.E.2d 510, 513 (1995) (finding a franchise agreement unnecessary because under the enacted ordinance, the utility company’s continued use of the streets rendered them liable for the payment of the fees). Rather, I would find the inquiry is whether, after annexation, the imposition of a franchise fee constitutes an ouster, which is prohibited under City of Abbeville v. Aiken Elec. Coop., Inc., 287 S.C. 361, 338 S.E.2d 831 (1985). I would conclude there is no evidence that the Town of Awendaw’s imposition of a franchise fee of 3% of SCE & G’s gross income, derived from sales of electricity to customers located in Awendaw, would constitute an ouster. Accordingly, I would affirm.
. In 1914, the original franchise ordinance was expanded to include underground use of the public streets. Id.