United States Court of Appeals,
Eleventh Circuit.
Nos. 94-4323, 94-4496.
TEC COGENERATION INC., RRD Corporation, as they are partners in
South Florida Cogeneration Associates, Thermo Electron Corporation,
Rolls-Royce, Inc., Plaintiffs-Appellees,
v.
FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy
Services, Inc., Defendants-Appellants,
Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr., Clark
Cook, Defendants,
Florida Public Service Commission, Movant.
TEC COGENERATION INC., RRD Corporation, as they are partners in
South Florida Cogeneration Associates, Thermo Electron Corporation,
Rolls-Royce, Inc., Plaintiffs-Appellees,
v.
FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Energy
Services, Inc., Defendants-Appellants,
Wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr., Clark
Cook, et al., Defendants.
June 10, 1996.
Appeals from the United States District Court for the Southern
District of Florida (No. 88-2145-CIV-Atkins), Clyde Atkins, Judge.
ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC
Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and
MILLS*, District Judge.
PER CURIAM:
Upon consideration of the appellee's suggestion for rehearing
en banc, treated as a petition for rehearing by the panel, the same
is granted, and the opinion filed in this case on March 8, 1996,
*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
and published at
76 F.3d 1560, is modified in one respect. The
first column, consisting of three full paragraphs,
76 F.3d at 1570,
is deleted, and in lieu thereof the following three paragraphs,
including two footnotes, are substituted:
We agree with the district court that the issue in this
case is active supervision vel non. We disagree with the
district court that the PSC's supervision was insufficient.
The record reflects that the PSC played an active and
substantial role "in determining the specifics of the economic
policy" pursued by FPL in the areas of wheeling, rates, and
interconnection. See Ticor, 112 S.Ct. at 2177.
Utilities, including suppliers of electrical energy, are
traditionally heavily-regulated industries. It is not unusual
for them to be given monopoly positions, as in Florida, with
state regulation supplanting competition as the price and
economic viability control. The record in this case reflects
a history of active regulation.1 As to wheeling, after an
eleven-month contested administrative proceeding, the PSC
approved FPL's actions in denying the Cogenerators' wheeling
request. As to rates related to cogeneration (backup, avoided
cost, and interruptible), the record reflects that these rates
are determined by PSC rulemaking and have been the subject of
extensive and contested agency proceedings. Furthermore, the
resulting rates were different from those proposed by the
Cogenerators or FPL. As to interconnection, the record
reflects that the PSC also conducted extensive proceedings
developing detailed instructions on interconnection agreements
and fixing the terms of FPL's standard interconnection
agreement.2
We readily conclude, therefore, that FPL's actions bear
the affirmative and ongoing imprimatur of the state; that
there is ample evidence in the record to indicate that the
state, through the PSC, has played a substantial role in
determining the specifics of FPL's economic policy; and, that
the state has clearly exercised sufficient independent
judgment and control to satisfy the active supervision prong.
Id.
1.
The district court recognized that "FPL's conduct has
been carefully structured by the [PSC] and supervised in many
[PSC] proceedings."
2.
Under Fla.Admin.Code Rule 25-17.087 (1988), a
cogenerator may justify changes to the standard form, through
objection to the PSC, which retains full control over the
subject matter.
In all other respects, the petition for rehearing is DENIED.
No member of this panel nor other judge in regular active service
on the court having requested that the court be polled on rehearing
en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh
Circuit Rule 35-5), the suggestion of rehearing en banc is DENIED.
