VERO BEACH — The Florida Public Service Commission staff strongly recommended Thursday that the PSC issue a statement making it clear Vero Beach has been given the exclusive right forever to provide electricity to customers in its current service territory — including areas outside the Vero city limits.
Should the PSC follow that recommendation on Feb. 3 when the matter is taken up in Tallahassee, Vero would walk away with validation of its claims to a permanent territory. Vero electric’s customers outside the city limits would be left with only one recourse — to seek relief via what promises to be an arduous and expensive court process.
There was a chance that the PSC staff might heed a cautionary message by the Town of Indian River Shores’ attorney Bruce May, in which May urged the PSC to be very careful not to tread upon issues pertinent to the Shores’ circuit court lawsuit against Vero. That lawsuit is set to test the Shores’ argument that the Town has sovereign powers which would allow it to switch power providers once the Town’s permission for Vero to operate across its borders ends in November 2016.
And yet, the staff apparently did not act in accordance with such caution, issuing the following recommendation:
“The Commission should declare that Vero Beach has the right and obligation to continue to provide retail electric service in the territory described in the Territorial Orders upon expiration of the Franchise Agreement,” the PSC staff said on page 4 of the document.
That territory includes the approximately 22,000 customers in unincorporated Indian River County and the Town of Indian River Shores, meaning that, according to the PSC, Vero would get to keep those customers regardless of their wishes to go with a lower-priced power provider after their 30-year franchise agreement expires.
City Manager Jim O’Connor said in response to the news, “It just repeats what we have been saying all along.”
In the 21-page document, released at 12:35 p.m. Thursday, the PSC staff recommends the five-person board reiterate the PSC’s “exclusive and superior” authority over setting territories for electric service.
The staff’s recommendation states, “Florida Statute provides that the jurisdiction conferred upon the Commission shall be exclusive and superior to that of all other boards, political subdivisions, municipalities, towns or counties, and in case of conflict therewith, all lawful orders of the Commission shall in each instance prevail.”
The PSC staff also recommends that Indian River County’s request for alternative relief to help the county gets its customers out of Vero’s territory.
“As alternative relief, the County asks that the Commission initiate proceedings to address the territorial agreements, service boundaries, and electric grid reliability responsibilities so as to ensure the continued and uninterrupted supply of electric service throughout the County.
“Whether the Commission decides to issue or declines to issue a declaratory statement, in whole or in part, the Commission should deny the County’s alternative request for relief because it fails to supply sufficient, specific information upon which the Commission could determine whether to initiate any proceedings,” the PSC staff states.
Late Wednesday, County officials learned that, along with their own petition for declaratory statement being heard on Feb. 3 in Tallahassee, that the City of Vero Beach’s own petition would be moved from March 3 to Feb. 3 so the two could be heard at the same time. Vero officials got confirmation Thursday morning.
The legal team representing the Town of Indian River Shores, reached late Thursday, had reviewed the staff’s memo in detail and, after conferring with PSC attorneys, determined that the recommendation would not interfere with the legal remedy the Shores is seeking via its lawsuit against Vero. The Shores lawsuit does not challenge the PSC’s exclusive jurisdiction of service territories, but the Town seeks to win a judgment that would serve as the basis for the PSC to re-draw Vero’s territory.
Throughout the document, the staff recognizes the relevance of the ongoing litigation and unequivocally states several times that the recommendation only applies to the narrow facts of Vero’s petition, and that it is not intended to be used in or to circumvent the pending dispute in circuit court.
Oral arguments are set to be heard on Vero’s petition, with each side allotted 15 minutes to speak, according to the staff’s memo.
The PSC may accept or reject the staff recommendation when it meets on Feb. 3, but by upholding and affirming Vero’s right to a permanent territory, the PSC is also defending its own powers and protecting the territorial rights of all the big power companies, whose attorneys have filed briefs in support of Vero’s legal arguments.
The original document can be found on the Florida Public Service Commission’s website. The County’s docket number is 140142 and Vero’s docket number is 140244.