Indian River Shores in January asked the Florida Public Service Commission for guidance on where to defend its rights under Florida’s constitution in its dispute with Vero Beach about electrical service.
In response, the Commission’s staff has issued a memo that reads like an elaborately crafted blow-off.
The one thing the memo states clearly in the midst of all the bureaucratic gobbledygook is that only the PSC has the right to decide whether Vero Beach will continue to provide high-priced electricity to Shores customers after the 30-year franchise agreement between the Town and the City expires in November.
If the commission follows its staff’s guidance when it meets on March 1, the Shores will remain in Kafkaesque limbo, no closer than before to knowing where to challenge Vero’s claim that it can continue providing power to the Shores, no matter what the Town or its ratepayers say, think or do.
The Commission – a five-member board of political appointees – has a massive legal and technical staff, a staff so large that the PSC campus has a cavernous cafeteria larger than many public school cafeterias that can feed hundreds of government employees assembly-line style.
The PSC and this huge staff are tasked with serving the public interest when it comes to utility service, but the past two years’ worth of rulings and staff white papers have shown that what the agency is best at is defending its own power.
This time around, the Shores’ asked for a clear answer whether the PSC will rule on the Town’s constitutional right to control its own electric service, or whether that question is a matter for the courts.
In response, the staff memo seems to suggest the Commission ignore that question and instead declare what it has already declared twice before: “That the Commission has the jurisdiction under Section 366.04 Florida Statute to determine whether Vero Beach has the legal authority to continue to provide electric service within the corporate limits of the Town of Indian River Shores upon the expiration of the franchise agreement between the Town of Indian River Shores and Vero Beach.”
The PSC has twice defended Vero’s “right and responsibility” to serve within its PSC-granted territory beyond the term of any franchise agreement – once in response to Indian River County’s petition filed in 2014 and again as an answer to Vero’s own request to have its position bolstered.
Vero has chimed in, agreeing that the PSC alone has exclusive and superior powers over territories and that the PSC has already affirmed Vero’s right to serve, regardless of the existence of a franchise agreement.
Vero’s right to serve, the PSC argues, is based upon the Commission’s own right to grant service territories, a right the PSC deems to be inviolate, as reiterated in the staff memo. “The jurisdiction conferred upon the Commission shall be exclusive and superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages or counties, and in case of conflict therewith, all lawful acts, orders rules and regulations of the Commission shall in each instance prevail,” the staff states on page 5 of the memo.
But the Town is asking a different question. It argues it has a constitutional right and responsibility to provide proper services for its residents, a right that is separate from the question of who assigns electrical service territories, and asked in its petition whether the PSC will rule on that question.
Instead of saying whether the constitutional question should be decided by the PSC or by the courts, the staff memo tosses out several different avenues the Shores might take to maybe get the answer the Town is looking for.
The problem with that is the Shores does not have time before the end of the franchise agreement to bounce around from appeals court venue to appeals court venue.
Running out the clock gives Vero Beach every advantage because it maintains the status quo, which keeps the Shores on Vero’s system paying rates that are about 30 percent higher than Florida Power and Light and continuing to subsidize Vero’s general fund by about $600,000 per year.
The Shores previously asked the circuit court to rule on its constitutional rights versus Vero’s territorial rights, but Judge Cynthia Cox said the PSC should answer that question. The town could appeal Cox’s opinion in the District Court of Appeals and proceed down that road, but that could be difficult since Cox said the courts lack jurisdiction.
Alternately, the Shores could attempt to mount a territorial dispute case with the PSC, but that would require Florida Power & Light to step up and be a full partner in the process. FPL has an offer on the table to purchase the Shores customers from Vero and it is the utility that would logically take over the Shores should the territorial borders be redrawn.
The problem there is both FPL and the City of Vero Beach get their authority to provide power from the territorial order that carves Indian River County into the parts currently served by FPL and the parts inside and outside the Vero city limits that are currently served by Vero.
FPL also has territories all over the state, with customers FPL presumably does not want to fight over with neighboring utilities that are FPL’s competition for market share. Getting FPL to saddle up with the Shores for a full-blown territorial dispute petition seems like a doubtful proposition.
To further complicate things, the staff memo suggests the Shores could try to take its case to the Florida Supreme Court, but says the Town may be on shaky ground in terms of meeting the criteria for standing.
Bruce May, the Shores’ utility attorney, said Monday the Town was not expected to issue a public statement about the PSC staff memo, in light of the pending decision by the Commission. The PSC meets at its Tallahassee headquarters at 9:30 a.m. Tuesday and the Shores petition is listed as the third item on the published agenda.
