Action Group v. Deason

615 So. 2d 683, 18 Fla. L. Weekly Supp. 156, 1993 Fla. LEXIS 443, 1993 WL 74254
CourtSupreme Court of Florida
DecidedMarch 18, 1993
DocketNo. 81076
StatusPublished
Cited by2 cases

This text of 615 So. 2d 683 (Action Group v. Deason) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Action Group v. Deason, 615 So. 2d 683, 18 Fla. L. Weekly Supp. 156, 1993 Fla. LEXIS 443, 1993 WL 74254 (Fla. 1993).

Opinion

KOGAN, Justice.

We have for review an order of the Florida Public Service Commission (Commission) approving an “Agreement for Purchase and Sale of Electric System” entered into by Florida Power Corporation and Sebring Utilities Commission. We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution, and section 366.10, Florida Statutes (1991).

Florida Power Corporation (Florida Power) and Sebring Utilities Commission (Sebr-ing) filed a joint petition for approval of several aspects of a purchase and sale agreement under which Florida Power will acquire Sebring’s electric utility system and provide electric service to present and future customers in the Sebring service territory. The Action Group, a customer association, was granted intervenor status. Both a customer hearing and a technical hearing were held. After arguments and the Commission’s staff recommendation were heard, the Commission entered the order under review.

The circumstances leading to the purchase and sale agreement are recited in the Commission’s order as follows:

The Sebring Utilities Commission is in serious financial distress. Faced with escalating debt obligations in 1991, the Sebring Utilities Commission sold its generation facilities and most of its transmission facilities to Tampa Electric Company. At that time Sebring entered into a purchased power contract with Tampa Electric Company to supply all of its capacity needs. The sale to Tampa Electric Company did not solve Sebring’s financial problems, however, and debt service on approximately $85 million of bonds that remain outstanding has drained Sebring’s resources and brought it to the verge of bankruptcy.
Presently, Sebring is in default of its bond covenants. The rates Sebring levies upon its customer base are not sufficient to cover the debt service and maintain required reserve margins. Sebring maintains that compliance with its bond covenants would require an estimated thirty-seven percent increase in current rates, raising a typical residential electric bill to $151 per 1000 kwh [(kilowatt hours)]. Sebring has drawn on its reserves to avoid raising its electric customers’ rates, because those rates are already the highest in the state.
Sebring’s rates compare most unfavorably to those of its nearest neighbor, Florida Power Corporation. Customers of Sebring presently pay $110 per 1000 kilowatt hours (kwh) of electricity, while their neighbors served by Florida Power Corporation pay $71 per 1000 kwh of electricity. Decades of territorial conflict and competition have left the two utilities’ service areas entwined and confused, emphasizing the rate discrepancy between the two utilities. Property val[685]*685ues in Sebring are depressed, and the community is dissatisfied and divided.
To provide rate relief to its customers and retire its existing bonds, Sebring issued a request for proposals to purchase its electric distribution and remaining transmission facilities. Florida Power Corporation was selected as the successful bidder. Negotiations began soon thereafter, and culminated after more than a year in the contract that is the subject of these proceedings, the “Agreement for Purchase and Sale of Electric System.”

The order explains the relevant terms of the agreement as follows:

The agreement provides for [Florida Power] to purchase the remaining assets of the Sebring electric system for a base purchase price of not more than $54 million, plus an additional amount to cover Sebring’s miscellaneous debts and expenses and any amount owed by Sebring to Tampa Electric Company for power purchases under the power purchase agreement. The base purchase price is the amount the parties have estimated will be necessary to repay in full all of Sebring’s outstanding bonds. The City of Sebring will pay $21.5 million to purchase Sebring’s water system, and that amount and the balance of Sebring’s reserve funds will also be applied to repay the bonds.
The base purchase price includes three components: 1) the net book value of Sebring’s assets as of the closing date_; 2) an amount for “Going Concern” the Commission determines appropriate; and 3) the remainder that represents the amount above net book value and going concern value needed by Sebr-ing to retire its debt.
The agreement provides that Florida Power Corporation will recover the remainder of the base purchase price above net book and going concern value specifically from customers that Sebring was serving as of the date of closing, and all new customers in the Sebring service area over a period of 15 years. That amount, plus costs to finance the purchase, interest expense, and certain fees and taxes, would be charged only to those customers as a separate rate, the “SR-1 Rate Rider,” in addition to Florida Power Corporation’s approved rates. The rate rider would not be charged to Florida Power Corporation’s general body of ratepayers.

The Action Group took the position that the Commission is without subject matter jurisdiction to approve the “Sebring rider.” The Action Group argued that the rider is not a “rate” as contemplated by chapter 366, rather it is a “loan” from Florida Power to Sebring that will be recovered from Sebring’s customers. In answer to this challenge the Commission stated:

It is axiomatic that if we have exclusive and plenary jurisdiction over the rates and charges of public utilities, and we are charged with the obligation to ensure that the rates and charges are fair[,] just and reasonable, we must have jurisdiction to determine what is a rate in the first place....
Action Group’s argument is a rate discrimination argument, not a jurisdictional one. The proper question to ask here is not whether the proposed Sebring Rider is a rate. The proper question to ask is whether the proposed Sebring Rider unduly discriminates between customers who are similarly situated and who receive essentially the same service. Action Group does not question our jurisdiction to answer the question when it is posed this way.

The Commission then determined that the Sebring rider was not unduly discriminatory. In reaching this conclusion the Commission reasoned that

the rider accurately represents the additional cost to serve the Sebring customers because of Sebring’s financial difficulties, and we believe that it would be discriminatory to pass that additional cost to Florida Power Corporation’s general body of ratepayers....
... The record of this proceeding makes it perfectly clear, despite many Sebring customers’ wish that it be otherwise, that the cost of the Sebring debt is [686]*686a cost to serve the Sebring customers. That cost attaches to that class of customers, and distinguishes it from other classes of customers, no matter who provides the electric service. It will not simply go away.

After reviewing all aspects of the Sebring rider and the SR-1 rate schedule, the Commission approved the rider and the rate schedule as part of Florida Power’s rate schedule.

In its conclusion the Commission went on to explain that

[a]s a general rule, we do not permit utilities to identify a pool of debt costs and apply those costs to a particular set of customers.

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Related

Southern States Utilities v. Florida Public Service Commission
714 So. 2d 1046 (District Court of Appeal of Florida, 1998)
So. States Util. v. FLA. PUB. SERV. COM'N
714 So. 2d 1046 (District Court of Appeal of Florida, 1998)

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Bluebook (online)
615 So. 2d 683, 18 Fla. L. Weekly Supp. 156, 1993 Fla. LEXIS 443, 1993 WL 74254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/action-group-v-deason-fla-1993.