Discussion
of Issues
Issue 1:
Should the Commission grant the City of Vero Beach’s
Motion to Intervene and Florida Power & Light Company’s Petition to
Intervene?
Recommendation:
No. The Commission should
deny Vero Beach’s Motion to Intervene and FPL’s Petition to Intervene because
intervention is premature and unnecessary at this time. (Cowdery)
Staff Analysis:
On March 4, 2016, Indian
River Shores filed its Petition asking the Commission to modify the Territorial
Orders between FPL and Vero Beach. On March 24, 2016, Vero Beach filed a Motion
to Intervene, or in the alternative, a request to be named a party, pursuant to
Chapters 120 and 366, F.S., and Rules 25-6.0441, 25-22.036, 25-22.039,
28-106.201, and 28-106.205, F.A.C. Vero Beach states that as the incumbent
utility providing service pursuant to territorial agreements between FPL and
Vero Beach approved by the Commission pursuant to the Commission’s Territorial
Orders at issue in the Petition, Vero Beach’s substantial interests will be
directly affected by the issues raised in the docket. Vero Beach requests
intervenor status so that it may file responsive pleadings and otherwise fully
participate in Docket No. 160049-EU.
On March 22,
2016, FPL filed a Petition to Intervene pursuant to Chapters 120 and 366, F.S.,
and Rules 25-22.039 and 28-106.201, F.A.C. FPL alleges that it is clear on the
face of the Petition that FPL’s substantial interests will be determined by the
Commission’s decision in this proceeding because Indian River Shores has
requested modification to the order approving FPL’s territorial agreement with
Vero Beach based on changed legal circumstances. FPL states that Indian River
Shores has specifically requested the Commission to augment FPL’s service area
approved in the Territorial Order by placing all of Indian River Shores within
the electric service area of FPL.
Issues 2-4
address motions filed in this docket. Although oral argument has not been
requested on the motions, it is within the Commission’s discretion to allow
participation at the Agenda Conference. Staff is recommending in Issue 5 that
the Petition requesting modification of the Territorial Orders be issued as a proposed
agency action (PAA). Interested persons may participate at the Agenda
Conference on Issue 5 pursuant to Rule 25-22.0021(2), F.A.C. The Commission
invites broad participation in PAA proceedings in order to better inform itself
of the scope and implications of its decisions.See In re: Application for increase in water and
wastewater rates in Pasco County by Labrador Utilities, Inc., Order No.
PSC-12-0139-PCO-WS, issued March 26, 2012, Docket No. 110264-WS (Order Denying
motion to Intervene in PAA proceeding), and Order No. PSC-14-0311-PCO-EM,
issued June 13, 2014, in Docket No. 140059-EM, In re: Notice of new municipal electric service provider and petition
for waiver of Rule 25-9.044(2), by Babcock Ranch Community Independent Special
District. Vero Beach may participate fully in this proceeding, including
filing its motion to dismiss and having it considered by the Commission,
without intervening in this PAA proceeding.
Further, substantially
affected persons will have the opportunity to request a hearing pursuant to
Sections 120.569 and 120.57, F.S., once the Commission’s PAA Order is issued. For
the reasons explained above, formal intervention by Vero Beach and FPL
pursuant to Chapter 120, F.S., is premature and unnecessary at this time. Staff
therefore recommends that the Commission deny Vero Beach’s Motion to Intervene
and FPL’s Petition to Intervene.
Issue 2:
Should the Commission grant Vero Beach’s Motion to
Dismiss the Petition for failure to meet the pleading requirements of Rule
28-106.201, F.A.C.?
Recommendation:
No. The Commission should deny the Motion to Dismiss
the Petition for failing to meet pleading requirements because the Petition is
in substantial compliance with Rule 28-106.201, F.A.C. (Cowdery)
Staff Analysis:
Legal Standard
Indian River
Shores’ filed its Petition pursuant to Sections 120.57 and 366.04, F.S.
Sections 120.569 and 120.57, F.S., apply in all proceedings in which the
substantial interests of a party are determined by an agency. Unless otherwise
provided by law, a petition or request for hearing must include all items
required by Rule 28-106.201, F.A.C., if the hearing involves disputed issues of
material fact. A petition or request for
hearing must include all items required by Rule 28-106.301, F.A.C., if the
hearing does not involve disputed issues of material fact. A petition filed
under Chapter 120, F.S., that is in substantial compliance with the applicable
uniform rule requirements need not be dismissed.
Arguments of Vero Beach and Indian River Shores
Vero Beach
argues that the Petition should be dismissed because although the Petition
purports to be filed pursuant to Section 120.57, F.S., it fails to meet the
minimum pleading requirements of Rule 28-106.201(2), F.A.C. Specifically, Vero Beach alleges that the
Petition fails to identify disputed issues of material fact, a statement of
ultimate facts alleged, and an explanation of why Indian River Shores is
entitled to the relief requested under specific statutes, rules, or orders of
the Commission.
Indian River
Shores asserts that it has sufficiently pled a claim for relief. Indian River Shores argues that Rule
28-106.201, F.A.C., does not apply since the Petition is not challenging
proposed agency action. Indian River
Shores states that the Petition seeks relief from the Commission pursuant to
Section 366.04, F.S., and that the Florida Supreme Court expressly recognized
in Peoples Gas System, Inc. v. Mason,
187 So. 2d 335, 339 (Fla. 1966), that the Commission may withdraw or modify its
approval of a service area agreement, or other order, in proper proceedings
initiated by it or even an interested member of the public.
Indian River
Shores further argues that Rule 28-106.201, F.A.C., applies to requests for
hearings on disputed issues of material fact, but that the Petition’s material
facts are meant to be undisputed. Indian River Shores argues that even if Rule
28-106.201, F.A.C., is applicable, Indian River Shores has substantially
complied with pleading requirements because a plain reading of the Petition
indicates that there are no disputed issues of material fact. Indian River
Shores further argues that the Petition gives a detailed explanation of the
changed legal circumstances that require modification of the Territorial Orders
and gives a detailed explanation of the provisions of the Florida Constitution,
statutes, and case law that require modification of the Territorial Orders.
Analysis
Staff believes that the Petition is in substantial compliance with the pleading
requirements of the uniform rules and contains sufficient allegations to allow
the Commission to rule on the Petition’s request to modify the Territorial
Orders. For these reasons, staff recommends that the Commission deny Vero
Beach’s Motion to Dismiss the Petition for failing to meet pleading
requirements.
Issue 3:
Should the Commission grant Indian River Shores’ Motion
to Strike?
Recommendation:
No. The Commission should deny Indian River Shores’
Motion to Strike. (Cowdery)
Staff Analysis:
Legal Standard
Rule 1.140(f), Florida Rules of Civil Procedure, states
that a party may move to strike or the court may strike redundant, immaterial,
impertinent, or scandalous matter from any pleading at any time. A motion to
strike is appropriately directed to pleadings, not to motions to dismiss. Order
No. PSC-04-0930-PCO, issued September 22, 2004, in Docket No. 040353-TP, In re:
Petition to review and cancel, or in the alternative immediately suspend
or postpone, BellSouth Telecommunications, Inc.’s PreferredPack Plan tariffs,
by Supra Telecommunications and Information Systems, Inc. A motion to
strike should only be granted if the pleadings are completely irrelevant and
have no bearing on the decision. Bay
Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005
(Fla. 5th DCA 1977).
Rule 1.140(f), Florida Rules of Civil Procedure, does not
control in administrative proceedings. The Commission has used the rule as
guidance when ruling on motions to strike, generally concerning evidentiary
questions on testimony filed during the course of an administrative hearing
proceeding. E.g. Order No.
PSC-99-1809-PCO-WS, issued September 20, 1999, in Docket 971220-WS, In re: Application for transfer of
Certificates Nos. 592-W and 509-S from Cypress Lakes Associates, Ltd. to
Cypress Lakes Utilities, Inc. in Polk County.
Arguments of Vero Beach and Indian River Shores
Indian River Shores states that pursuant to Rule 1.140(f),
Florida Rules of Civil Procedure, the Commission should ignore or strike the
material in the Motion to Dismiss which is outside the four corners of the
Petition as immaterial and impertinent. Indian River Shores asks the Commission
to strike Vero Beach’s factual allegations and arguments that the Petition’s
“real issue” is to challenge Vero Beach’s utility rates. Indian River Shores
does not specify what language of the Motion to Dismiss the Commission should
strike. In addition, Indian River Shores argues that the Commission should
strike Exhibit B to the Motion to Dismiss, a newspaper article, which Indian
River Shores states that Vero Beach offers as purported evidence that the real
purpose of the Petition is to challenge rates rather than enforce fundamental
provisions of the Florida Constitution.
Vero Beach
argues that Indian River Shores’ Motion to Strike should be denied because the
Commission is not bound by the Florida Rules of Civil Procedure unrelated to
discovery. Vero Beach further argues that Rule 1.140(f), Florida Rules of Civil
Procedure, provides for striking certain material from pleadings, and the rule
does not apply because a motion to dismiss is not a pleading. Vero Beach also
argues that a motion to strike language as immaterial should only be granted if
the material is wholly irrelevant and can have no bearing on the equities and
no influence on the decision. Vero Beach alleges that the material that Indian River
Shores seeks to strike from the Motion to Dismiss, including Exhibit B, is
clearly relevant to the equities, issues, and decision in this case and is
therefore not subject to being stricken. Vero Beach further argues that the
Motion to Strike should be denied because it fails to identify with sufficient
specificity the portions of the Motion to Dismiss that Indian River Shores
seeks to strike.
Analysis
Staff believes
that Indian River Shores’ Motion to Strike is premature because this docket is
in the proposed agency action stage and has not progressed to an evidentiary administrative
hearing. Even if Indian River Shores’ Motion to Strike were not premature,
staff recommends that it be denied because a motion to strike is appropriately
directed to pleadings, not to motions to dismiss.
Staff believes that the motion to strike should be denied
on the additional ground that Vero Beach’s arguments are not wholly immaterial
to the Petition. It appears that Indian River Shores is asking the Commission
to strike Vero Beach’s entire legal argument that Indian River Shores lacks
standing to ask for modification of the Territorial Orders on the basis that
FPL has lower rates than Vero Beach. Vero Beach’s arguments appear responsive to Indian
River Shores’ allegations that the Territorial Orders should be modified
because of changed circumstances arising from Vero Beach’s abuse of monopoly
powers by “charging excessive rates.” Finally, the Motion to Strike fails to
identify specific portions of the Motion to Dismiss that it believes are
immaterial or impertinent. For the reasons set forth above, staff recommends
that the Commission deny Indian River Shores’ Motion to Strike.
Issue 4:
Should the City of Vero Beach’s Motion to Dismiss
Indian River Shores’ Petition for lack of standing be granted?
Recommendation:
The Commission should grant in part and deny in part
Vero Beach’s Motion to Dismiss for lack of standing. The Commission should
grant the Motion to Dismiss on the grounds that Indian River Shores does not
have standing to request modification of the Territorial Orders based on
allegations of injury from abuses of monopoly powers and excessive rates. The
Commission should also grant the Motion to Dismiss on the grounds that Indian
River Shores does not have standing to represent Vero Beach’s electric
customers who reside in Indian River Shores. Dismissal on these grounds should
be with prejudice because it conclusively appears from the face of the Petition
that these defects in standing cannot be cured. The Commission should deny the
Motion to Dismiss on the grounds that Indian River Shores has standing as a
municipality to request modification of the Territorial Orders based on changed
legal circumstances emanating from Article VIII, Section 2(c), Florida
Constitution. (Cowdery)
Staff Analysis:
Legal Standard
For purposes of ruling on the
Motion to Dismiss for lack of standing, the Commission must confine its review
to the four corners of the Petition, draw all inferences in favor of the
petitioner, and accept all well-pled allegations in the petition as true. Chandler
v. City of Greenacres, 140 So. 3d 1080, 1083 (Fla. 4th DCA 2014). See
also Mid-Chattahoochee River Users v. Florida Department of Environmental
Protection, 948 So. 2d 794, 796 (Fla. 1st DCA 2006), rev. denied,
966 So. 2d 967 (Fla. 2007)(affirming agency’s final order granting motion to
dismiss petition for lack of standing under Agrico). Dismissal of a
petition may be with prejudice if it appears from the face of the petition that
the defect cannot be cured. Section
120.569(2)(c), F.S.
The Florida Supreme Court has stated that the Commission may modify
its approval of a territorial agreement “in proper proceedings initiated by it,
a party to the agreement, or even an interested member of the public.” Peoples Gas System, 187 So. 2d at 339; City of Homestead v. Beard, 600 So. 2d
450, 453 n. 5 (Fla. 1992); Public Service
Commission v. Fuller, 551 So. 2d 1210, 1212 (Fla. 1989). In order for
Indian River Shores to have standing to receive a Section 120.57, F.S., hearing
on its Petition, it must demonstrate: (1) that it will suffer injury in fact
which is of sufficient immediacy to entitle it to a Section 120.569 and 120.57,
F.S., hearing (degree of injury); and (2) that its substantial injury is of a
type or nature that the proceeding is designed to protect (nature of injury). Agrico Chemical Co., v. Department of
Environmental Regulation, 406 So. 2d 478, 472 (Fla. 2d DCA 1981), rev. denied, 415 So. 2d 1359 and 415
So. 2d 1361 (Fla. 1982). See also Nuvox Communications, Inc. v. Edgar, 958
So. 2d 920 (Fla. 2007)(affirming Commission order dismissing petitions with
prejudice for lack of standing under Agrico);
Ameristeel
Corp. v. Clark, 691 So.
2d 473, 477 (Fla. 1997)(affirming Commission order dismissing petition
protesting territorial order for lack of Agrico
standing, finding that Ameristeel’s claim concerning paying higher rates to FPL
was not injury in fact entitling it to a Section 120.57, F.S., hearing).
Although Indian River Shores must demonstrate that it will suffer injury in
fact of sufficient immediacy to entitle it to a hearing, it does not have to
establish that it will prevail on the merits of its argument. Palm Beach County Environmental Coalition
v. Florida Department of Environmental Regulation, 14 So. 3d 1076, 1078
(Fla. 4th DCA 2015).
The purpose of requiring a party to have standing to participate in an
administrative proceeding is to ensure that a party has sufficient interest in
the outcome to warrant a hearing and to assure that the party will adequately
represent its asserted interests. In
this regard, “the obvious intent of Agrico
was to preclude parties from intervening in a proceeding where those parties’
substantial interests are totally unrelated to the issues which are to be
resolved in the administrative proceedings.”
Prescription Partners, LLC v. State, 109 So. 3d 1218, 1223 (Fla. 1st DCA
2013).
Staff recommends that the Motion
to Dismiss be granted in part and denied in part. Staff’s recommendation is discussed
in more detail below.
Arguments of Vero Beach and Indian River Shores
Vero Beach’s Motion to Dismiss
Vero Beach argues that the
Petition should be dismissed for lack of standing because only persons whose substantial interests
may or will be affected by action of the Commission may file a petition for an
administrative hearing. Vero Beach alleges that in order to establish standing
to initiate an administrative proceeding, a petitioner must demonstrate: (1)
that the petitioner will suffer an injury in fact that is of sufficient
immediacy to entitle it to a Section 120.57, F.S., hearing (degree of injury);
and (2) that the petitioner’s substantial injury is of a type or nature against
which the proceeding is designed to protect (nature of injury). Agrico, 406 So. 2d at 472.
Vero Beach argues that the actual injury alleged in the Petition is
that Vero Beach charges higher electric rates to customers in Indian River
Shores than does FPL. Vero Beach alleges that Indian River Shores’ interest in
lower electric rates does not constitute an injury in fact of sufficient
immediacy to establish grounds for Agrico
standing because the change in the relationships between the rates of Vero
Beach and the rates of FPL is not cognizable under the Commission’s territorial
statutes or its general Grid Bill authority.
Vero Beach argues that the Petition fails to allege any injury
relative to the statutory or rule provision criteria for approving territorial
agreements upon which the Territorial Orders were based, such as the
reasonableness of the purchase price of any facilities being transferred;
potential impacts on reliability; and the elimination of the potential
uneconomic duplication of facilities.
Likewise, Vero Beach argues that the Petition does not allege injury in
fact relative to the statutory and rule provisions concerning territorial
disputes. Vero Beach notes that even if Indian River Shores has alleged injury
relative to the “customer preference” criterion of Rule 25-6.0441(2)(d),
F.A.C., in that Indian River Shores has changed its mind because FPL’s rates
are now less than Vero Beach’s rates, the Commission and the Florida Supreme
Court have recognized on many occasions that customer preference – particularly
for lower rates, but for other factors as well - is not cognizable as a matter
of law. Additionally, Vero Beach argues that the Petition is deficient because
it does not allege any injury relative to the Section 366.04(5), F.S.,
requirement that the Commission assure avoidance of further uneconomic
duplication of generation, transmission, and distribution facilities.
Vero Beach argues that Indian River Shores failed to allege any injury
to any of the interests protected by the Commission’s territorial and related
Grid Bill statutes, Sections 366.04(2)(d)-(e) or 366.04(5), F.S., or Rule
25-6.0441, F.A.C., relating to Vero Beach’s ability to serve, to the adequacy
and reliability of Vero Beach’s service, or to the avoidance of uneconomic
duplication of facilities. Vero Beach argues that because the alleged injuries
are outside the zone of interests to be protected by the Commission’s
territorial and related Grid Bill statutes that Indian River Shores does not
meet the second requirement of Agrico.
In addition, Vero Beach argues that Indian River Shores lacks power, a
legal basis, and standing to assert the interests of its citizens in a
representative capacity, citing to Order No. 96-0768-PCO-WU, issued June 14,
1996, in Docket No. 960192-WU, In
Re: Application for a Limited Proceeding
to Include Groundwater Development and Protection Costs in Rates in Martin County
by Hobe Sound Water Company (Hobe
Sound Order). Vero Beach states that
the Hobe Sound Order states that:
[I]ntervention is not granted to the Town
[of Jupiter Island] in a representational capacity on behalf of its residents
and taxpayers. There is no authority
cited in the motion to support such standing to intervene, and there is nothing
in Chapter 120, Florida Statutes, to authorize a Town to intervene in
administrative proceedings on behalf of its taxpayers.
Vero
Beach argues that Indian River Shores’ allegation of injury to its purported
constitutional right to be protected from Vero Beach providing service in
Indian River Shores without Indian River Shores’ consent fails to demonstrate
injury in fact. Vero Beach argues that this is because the allegation of injury
is speculative, affords no grounds for modification of the Territorial Orders,
and is only being alleged as an injury because Vero Beach’s electric rates are
higher than those of FPL.
Indian River Shores’ Response to Motion to
Dismiss
Indian River Shores argues that the Motion to Dismiss should be denied
because Vero Beach has not and cannot meet the legal standard for dismissal,
noting that the Commission has recognized that dismissal is a drastic remedy
and is only appropriate when the legal standard has been clearly met. Indian
River Shores states that the Petition is not a simple demand by a customer to
be served by a particular utility of its choosing, and, instead, is complaining
about Vero Beach’s unconstitutional exercise of extra-territorial powers in
Indian River Shores’ corporate limits and the particular unregulated
monopolistic abuses arising out of that unconstitutional act.
Indian River
Shores argues that the Agrico standing
test does not apply because Indian River Shores has standing to seek
modification of the Territorial Orders as an interested member of the public
under Peoples Gas, 187 So. 2d at 339;
Fuller, 551 So. 2d 1210 at 1212; and City of Homestead, 600 So. 2d at 453 n.
5. The Petition alleges that if Agrico applies,
Indian River Shores meets the first requirement because it will suffer
substantial and immediate injury by Vero Beach using its unregulated monopoly
electric service area within Indian River Shores to extract monopolistic
profits from Indian River Shores’ residents, resulting in excessive rates for
lower quality service, with profits supporting non-utility operations of Vero
Beach and reducing the tax burden on Vero Beach residents. Indian River Shores argues that it has
standing because it has a constitutional right to be protected from Vero Beach
providing electric service within Indian River Shores without consent.
Indian River Shores argues that it has met the second prong of the Agrico test because the Petition alleges
injury of a type or nature which this proceeding to modify a territorial order
is designed to protect. Indian River Shores argues that the Florida Supreme
Court has emphasized that in order for a territorial agreement to be in the
public interest, parties to such an agreement must be subject to a statutory
regulatory regime sufficient to protect consumers from monopoly abuses because
a utility’s power to fix the price and thereby injure the public and the danger
of deterioration in service quality are the inevitable evils of unregulated
monopolies. Indian River Shores argues that the Commission has a duty to modify
the Territorial Order to protect Indian River Shores and its residents from
“monopoly abuses” to extract “monopolistic profits” in the form of high rates.
Indian River Shores objects to Vero Beach’s use of utility revenues as general
revenue to fund city operations unrelated to electric utility operations. Indian
River Shores argues that the active supervision that the Commission must
exercise to protect against monopoly abuses is particularly needed in this very
unique situation where Vero Beach is serving extraterritorially and exerting
unregulated monopoly powers within the corporate limits of another equally
independent municipality.
Indian River Shores states that Vero Beach’s arguments
that Indian River Shores has waived consent and that administrative finality
bars the Petition are affirmative defenses that cannot be used in ruling on the
Motion to Dismiss and, in addition, are without merit. Indian River Shores states
that even if Indian River Shores lacks standing to bring this Petition, the
Commission should address on its own motion the changed legal circumstances
that will render Vero Beach’s provision of electric service to Indian River
Shores unconstitutional upon expiration of the Franchise Agreement.
Indian River Shores argues that it has standing as a municipality to
represent the interests of its residents because it has an obligation to
protect them from Vero Beach’s unconstitutional exercise of unregulated
extraterritorial monopoly powers within Indian River Shores. Indian River
Shores distinguishes the Hobe Sound Order
as being a rate case with nothing to do with assertion of constitution
protections against improper encroachments by one municipality within the
boundaries of another. Indian River Shores notes that in the Hobe Sound Order, although the
Commission determined that the municipality did not have standing to represent
its citizens, the municipality did have standing to intervene as a customer of
the utility. Indian River Shores states that even if it cannot legally
represent the interests of its residents, it has standing as a customer of Vero
Beach.
Analysis
The Commission should grant the Motion to
Dismiss, in part.
The Petition’s allegations that Indian River Shores is harmed by
excessive rates caused by abuses of monopoly power, even if taken as true, do
not establish Indian River Shores’ standing to request modification of the
Territorial Orders in order to change service providers. It is established law
that “[a]n individual has no organic, economic or political right to service by
a particular utility merely because he deems it advantageous to himself,” Story v. Mayo, 217 So. 2d 304, 307 (Fla.
1968), cert. denied, 395 U.S. 909
(1969). In the Commission’s exercise of jurisdiction over territorial
agreements, larger policies are at stake than one customer’s self-interest. Lee County Electric Co-op v. Marks, 501
So. 2d 585, 587 (Fla. 1987)(stating that those larger policies must be enforced
and safeguarded by the Commission). An allegation of a significant price
differential between two electric utility providers does not give an existing
customer of one utility a substantial interest in the outcome of the
territorial agreement proceeding between those providers. Ameristeel, 691 So. 2d at 478 (affirming the Commission’s
dismissal of Ameristeel’s petition protesting territorial order for lack of
standing under the Agrico test). See also Order 9259, issued Feb 26,
1980, in Docket No. 79063-EU, In re:
Complaint of J. and L. Accursio, et al., v. Florida Power and Light Company and
City of Homestead (where the Commission dismissed a petition to “enjoin
enforcement” of a 12 year old territorial order, primarily because of rate
issues, because the petition did not sufficiently allege changes in
circumstances), cert. denied, Accursio v.
Mayo, 389 So. 2d 1002 (Fla. 1980).
Further, the Commission does not have jurisdiction over municipal
rates. In the 1974 Grid Bill,
as part of the Legislature’s regulatory regime over electric utilities, the
Commission was given limited regulatory jurisdiction over municipal electric
utilities. See 366.04(2), F.S. The
Legislature gave the Commission authority over municipalities to
prescribe uniform systems and classifications of accounts; to prescribe a rate
structure for all electric utilities; to require electric power conservation
and reliability within a coordinated grid, for operational as well as emergency
purposes; to approve territorial agreements; to resolve territorial disputes;
and to prescribe and require the filing of periodic reports and other data. The Legislature did not give the
Commission jurisdiction over the actual rates charged by a municipal electric
utility. Lewis v. Public Service
Commission, 463 So. 2d 227 (Fla. 1985)(stating that the Commission’s
jurisdiction over rate structure does not include jurisdiction over the actual
rates charged by a municipal electric utility). Because the Commission lacks
this jurisdiction, it does not have authority to determine what Vero Beach’s
electric rates should be or whether they are “too high” compared to FPL’s
current rates.
The Florida Supreme Court has stated that as part of Florida’s
legislatively constructed regulatory regime, if customers of municipal electric
utilities have complaints of “excessive rates or inadequate service their
appeal under Florida law is to the courts or the municipal council.” Story, 217 So. 2d at 308. In apparent
recognition that the circuit court is the appropriate forum in which it must
seek rate relief, Indian River Shores filed a lawsuit against Vero Beach in
circuit court, seeking relief from what it alleges are unreasonable,
oppressive, and inequitable electric rates.
See Exhibit B to Order No. PSC-16-0093-FOF-EU, issued March 4, 2016, in
Docket No. 160013-EU, In re: Petition for
declaratory statement regarding the Florida Public Service Commission’s
jurisdiction to adjudicate the Town of Indian River Shores’ constitutional
rights.
The Petition also generally alleges that the Commission has a duty to
protect Indian River Shores and its residents from “other anticompetitive
behavior” and “other monopoly abuses.” Indian River Shores’ Response to the
Motion to Dismiss specifically asks the Commission to “redraw the monopoly
service area boundaries in a manner that will comply with the antitrust laws”
by replacing Vero Beach with FPL as service provider. These statements are
misleading. The very Commission proceedings that approve territorial agreements
or resolve disputes by Commission order are the actions that cause territorial
agreements to “comply with the antitrust laws.” This is because the Florida
Legislature has through Section 366.04(2), F.S., created a “clearly articulated
and affirmatively expressed state policy for establishing electric utility
territorial boundaries” resulting in state action immunity for utilities from
antitrust liability. See Union
Carbide Corp. v. Florida Power & Light Co., 1993 U.S. Dist. LEXIS 21203
(M.D. Fla. 1993). As the Commission
stated in affirming its authority to enforce its territorial orders:
We must demonstrate continued, meaningful,
active supervision of the State’s policy to displace competition between
electric utilities throughout the state by approving — and enforcing — territorial
agreements and resolving disputes. (emphasis added)
Order No. PSC-13-0207-PAA-EM, issued May 21, 2013, in Docket No.
120054-EM, In re: Complaint of Robert D. Reynolds and Julianne
C. Reynolds against Utility Board of the City of Key West, Florida d/b/a Keys
Energy Services regarding extending commercial electrical transmission lines to
each property owner of No Name Key, Florida, 2013 Fla. PUC LEXIS 128, *53.
Further, other than making general statements concerning
anticompetitive behavior, the Petition does not allege any specific anticompetitive
behavior or violations of antitrust laws by Vero Beach. Even if specific
antitrust violations were alleged, the Commission does not have jurisdiction to
adjudicate antitrust violations, and the Petition does not argue otherwise.
The Petition’s complaint that the Territorial Orders result in Indian
River Shores residents being disenfranchised from voting for members of the
Vero Beach City Council is not a circumstance that has changed since the Territorial
Orders were issued, and therefore does not form a basis for modifying the
Territorial Orders. For the same reason, there is no merit to the Petition’s
argument that the Territorial Orders should be modified because FPL is
regulated as to rates by the Commission and Vero Beach is not. See Storey, 217 So. 2d at 307-308 (where,
in affirming the Commission’s territorial order, the Court did not accept the
customers’ argument that the order should be reversed because the impact of the
approved territorial agreement was to force them to take service from an
unregulated city utility with inferior rates and service, instead of receiving
service from a regulated utility.)
In order to act in a representative capacity on behalf of its
residents, the Legislature has to grant that power to Indian River Shores. See Ormond Beach v. Mayo, 330 So. 2d
524 (Fla. 1st DCA 1976), cert. denied,
341 So. 2d 1083 (Fla. 1976). Staff
is unaware of any grant of statutory authority to Indian River Shores that
would allow it to represent City electric customers located in Indian River
Shores on any of the issues raised in its Petition. The Commission has
previously denied a municipality intervention to act in a representational
capacity on behalf of its residents and taxpayers on the basis that there is
nothing in Chapter 120, F.S., to authorize a town to intervene in
administrative proceedings on behalf of its taxpayers. Hobe Sound Order. However, staff notes that
interested persons may participate in the Agenda Conference on proposed agency
action items.
For the reasons set forth above, staff recommends that the Commission
grant Vero Beach’s Motion to Dismiss, in part, on the grounds that Indian River
Shores does not have standing to request modification of the Territorial
Orders based on its allegations of injury from abuses of monopoly powers and
excessive rates. Further, Indian River Shores lacks standing to request
modification of the Territorial Orders in a representative capacity on behalf
of Vero Beach’s electric customers who reside in Indian River Shores. Staff
recommends that the Commission grant the Motion to Dismiss on these grounds
with prejudice because it conclusively appears from the face of the Petition
that the defects as to standing cannot be cured.
The Commission should deny the Motion to
Dismiss, in part.
Staff is of the opinion that the
question of whether Indian River Shores’ consent must be given in order for
Vero Beach to continue to provide electric service within the municipal
boundaries of Indian River Shores is a legal question separate and apart from
Indian River Shores’ allegations that rates are too high. Staff believes that
Indian River Shores’ legal argument that its consent is required by Section
VIII, Article (2)(c), Florida Constitution, in order for Vero Beach to provide
service within Indian River Shores forms a basis for standing. Standing may be
based upon an interest created by the Constitution or a statute. Florida Medical Association v. Department
of Professional Regulation, 426 So. 2d 1112, 1116, 1118 (Fla. 1st DCA
1983)(noting that zone of interest test of Agrico
is met if standing is based on constitutional grounds).
It is
staff’s opinion that Indian River Shores’ has established Agrico standing by alleging injury to its substantial interests as
a municipality by arguing that it has a constitutional right to require the
Commission to modify the Territorial Order when the Franchise Agreement and
Indian River Shores’ consent expire on November 6, 2016. Staff is unaware of
any Commission order or Florida court case that directly addresses this
question. Indian River Shores’ allegations demonstrate that Indian River Shores
as a municipality has sufficient interest in representing its asserted
interests. Staff is also of the opinion that Indian River Shores’ alleged
substantial interests relate to a question appropriately addressed by the
Commission, that is, whether there has been a changed circumstance that would
require the Commission to modify the Territorial Orders and replace Vero Beach
with FPL as electric service provider within the municipal boundaries of Indian
River Shores.
Staff believes that Vero Beach’s argument that the Florida
Constitution does not afford any basis for modification of the Territorial
Orders, that Indian River Shores waived consent, and arguments concerning the
doctrine of administrative finality, are all arguments that go to the merits of
Indian River Shores’ request for modification of the Territorial Orders. Arguments
on the merits are addressed in Issue 4, but they do not support denying Indian
River Shores standing to request modification of the Territorial Orders based
on changed circumstances emanating from the Florida Constitution. For the
reasons explained above, staff recommends that the Commission deny Vero Beach’s
Motion to Dismiss, in part, and find that Indian River Shores has standing as a
municipality to request modification of the Territorial Orders based on changed
legal circumstances emanating from Article VIII, Section 2(c), of the Florida
Constitution.
Issue 5:
Should the Commission grant Indian River Shores’
Petition for Modification of Territorial Order Based on Changed Legal
Circumstances Emanating from Article VIII, Section 2(c) of the Florida
Constitution?
Recommendation:
No. The Commission should deny on the merits Indian
River Shores’ Petition for
Modification of Territorial Order Based on Changed Legal Circumstances
Emanating from Article VIII, Section 2(c) of the Florida Constitution because:
(1) it fails to demonstrate that modification of the Territorial Orders is
necessary in the public interest due to changed circumstances not present in the proceedings which led
to the Territorial Orders; and (2) it fails to show that modification
would not be detrimental to the public interest. (Cowdery, Draper)
Staff Analysis:
I.
Legal Standard
In 1972, when the Commission
first approved the territorial agreement between FPL and Vero Beach, the
Florida Supreme Court had already established that the Commission had implied
authority under Chapter 366, F.S., to approve territorial agreements between
electric utilities. City Gas Co. v.
Peoples Gas System, Inc., 182 So. 2d 429, 436 (Fla. 1965). In 1974, the
Florida Legislature codified this authority in Section 366.04, F.S., as part of
the Grid Bill, Chapter 74-196, Laws of Florida.
Section 366.04, F.S., is the
general law that gives the Commission exclusive and superior jurisdiction over
territorial agreements between electric utilities. Section 366.04(2), F.S.,
gives the Commission the power to approve territorial agreements and to resolve
any territorial disputes between and among municipal electric utilities and
other electric utilities under its jurisdiction. Section 366.04(5), F.S., gives
the Commission jurisdiction over the planning, development, and maintenance of
a coordinated electric power grid throughout Florida to assure an adequate and reliable
source of energy for operational and emergency purposes in Florida and the
avoidance of further uneconomic duplication of generation, transmission, and
distribution facilities. Section 366.04(1), F.S., states that the jurisdiction
conferred upon the Commission shall be exclusive and superior to that of all
other political subdivisions, including municipalities, and, in case of
conflict therewith, all lawful acts and orders of the Commission shall in each
instance prevail. Through territorial orders issued under this authority, the
Commission, not municipalities, gets to decide which electric utility serves a
given area. A franchise agreement between a local government and an electric
utility cannot override a territorial order. See Board of County Commissioners Indian River County, Florida v. Art
Graham, etc., et al., 41 Fla. L. Weekly S 228 (Fla. 2016)(rejecting the
argument that counties may use franchise agreements to choose their electric
service provider because that would let counties do indirectly what the
Commission’s exclusive and superior jurisdiction over territorial agreements
precludes them from doing directly).
The Territorial Orders give Vero
Beach the right and obligation, as provided in Section 366.04, F.S., to supply
electric service to the territory described, which includes the portion of
Indian River Shores lying south of Old Winter Beach Road. See Indian River County, 41 Fla. L. Weekly S 228 (affirming the
Commission’s order 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” between Vero Beach and
Indian River County).
The Territorial Orders are final orders of the Commission subject to
the doctrine of administrative finality. Under that doctrine, the Commission
has limited, inherent authority to modify its final orders in a manner that
accords requisite finality to the orders, while still affording the Commission
ample authority to act in the public’s interest. Peoples Gas, 187 So. 2d at 339. The Commission may only modify a
territorial order after proper notice and hearing, and upon a specific finding
based on adequate proof that such modification or withdrawal of approval is
necessary in the public interest because of changed conditions or other
circumstances not present in the proceedings which led to the order being
modified. Id.
Arguments of Indian River Shores and Vero Beach
Indian River Shores’ arguments in support of
modification of the Territorial Orders based on Article VIII, Section 2(c),
Florida Constitution
Indian River Shores requests that
the Commission modify the Territorial Orders by placing the entire municipality
of Indian River Shores within FPL’s service area. This would result in the
transfer of approximately 3000 Vero
Beach electric customers located south of Old Winter Beach Road to FPL which
currently serves approximately 739 Indian River Shores residents located north
of Old Winter Beach Road. Indian River Shores argues that this
modification of the Territorial Orders is required pursuant to Peoples Gas, 187 So. 2d at 339, because
fundamental legal circumstances have changed since the Commission last approved
an amendment to the territorial agreement between FPL and Vero Beach in 1988.
The changed legal circumstance alleged by Indian River Shores is that Vero
Beach will no longer have Indian River Shores’ consent to provide electric
service within Indian River Shores upon expiration of the Franchise Agreement
on November 6, 2016.
Indian River Shores argues that
its consent is required because Article VIII, Section 2(c), Florida
Constitution, states that “exercise of extra-territorial powers by
municipalities shall be as provided by general or special law.” Indian River
Shores interprets this constitutional phrase to mean that the Legislature must grant
the power to provide electricity outside Vero Beach’s municipal borders
directly to Vero Beach. Indian River Shores alleges that because the
Legislature gave the Commission Section 366.04, F.S., authority over
territorial agreements, and not Vero Beach, Vero Beach is not providing
electric service in Indian River Shores as provided by general law. Indian
River Shores alleges that because Vero Beach is not providing electric service
in Indian River Shores as provided by general law, it requires Indian River
Shores’ consent to do so. Indian River Shores argues that it gave Vero Beach
this consent in the 1968 Contract and in the 1986 Franchise Agreement but that
Vero Beach will lose this consent when the Franchise Agreement expires on
November 6, 2016. Indian River Shores maintains that Vero Beach will be in
violation of the Florida Constitution if it provides electric service within
Indian River Shores without Indian River Shores’ consent.
Indian River Shores argues that
the Commission has acknowledged that an order approving a territorial agreement
between a municipal utility and an investor-owned utility does not provide a
municipal utility the inherent statutory authority to provide electric service
outside its municipal boundaries. Indian River Shores alleges that in In re: Joint petition for approval to amend
territorial agreement between Progress Energy Florida, Inc. and Reedy Creek
Improvement District, Order No. PSC-10-0206-PAA-EU, issued Apr. 5, 2010,
Docket No. 090530-EU (Reedy Creek Order),
when a development area was de-annexed from the Reedy Creek Improvement
District, the Commission “saw the need” to modify the territorial agreement
because pursuant to its charter, Reedy Creek Improvement District cannot
furnish retail electric power outside of its boundaries.
Indian River Shores argues that
because its consent is required, the Commission as a matter of law must modify
the Territorial Orders as requested in the Petition. Indian River Shores
maintains that the Commission may not consider any of the factors relative to
territorial disputes in Section 366.04(2)(e), F.S., and Rule 25-6.0441, F.A.C.,
or to territorial agreements in Section 366.04(2)(d), F.S., and Rule 25-6.0440,
F.A.C. Indian River Shores states that it is not asking the Commission to
redraw a service territory boundary between two utilities based on a statutory
or rule criteria, factor-by-factor determination of which utility is best
suited to serve considering the nature of the disputed area, ability of competing utilities to provide
reliable service, their costs to provide service and similar evidence, and the
avoidance of uneconomic duplication of distribution and subtransmission
facilities. Indian River Shores alleges that even if territorial dispute
criteria are relevant, the thrust of the Petition is its challenge to Vero
Beach’s legal ability to serve, which is one of those criteria.
Vero Beach’s arguments in opposition to
modification of the Territorial Orders
Vero Beach argues that the Petition should be dismissed as being
barred by the doctrine of administrative finality because it does not meet the
standard for modifying the Territorial Orders.
Vero Beach states that the doctrine of administrative finality is one of
fairness, based on the premise that the parties and the public may rely on
Commission orders. Vero Beach further states that the Commission may only
modify a territorial order upon a “specific finding based on adequate proof
that such modification or withdrawal of approval is necessary in the public
interest because of changed conditions or other circumstances not present in
the proceedings which led to the order being modified.” Peoples Gas, 187 So. 2d at 339. Vero Beach alleges that Indian
River Shores’ alleged changed circumstance -- expiration of the Franchise
Agreement and Indian River Shores’ withdrawal of its consent for Vero Beach to
operate in Indian River Shores -- is not a changed circumstance relevant to the
statutory criteria and factors that the Commission considered in approving the
Vero Beach-FPL territorial agreements through the Territorial Orders. Vero
Beach states that the Commission specifically found in the Territorial Orders
that each version of the Vero Beach-FPL territorial agreements was in the
public interest and consistent with the Commission’s Grid Bill authority to
avoid uneconomic duplication of facilities.
Vero Beach further argues that there is no requirement and nothing
concerning the need for Indian River Shores’ consent in any of the statutes or
rules relating to the Commission’s Grid Bill jurisdiction, the territorial
agreements between FPL and Vero Beach, or in the Territorial Orders. Vero Beach
maintains that Indian River Shores’ consent – if it existed – never had
anything to do with the FPL-Vero Beach territorial agreements or Territorial
Orders. Vero Beach alleges that it has been providing electricity to Indian
River Shores for at least 63 years and that if Indian River Shores ever had a
constitutional right to be protected against Vero Beaches’ exercise of its
power to provide electric service in Indian River Shores, Indian River Shores
waived that right many years ago.
Vero Beach argues that in reliance on the Commission’s Territorial
Orders and Chapter 366, F.S., other legal authority, and the actions of Indian
River County, Vero Beach has installed, operated, and maintained its electric
system facilities for the purpose of providing electric service to its service
territory. Vero Beach states that in fulfilling this necessary public purpose,
it has invested tens of millions of dollars, borrowed tens of millions of
dollars, and entered into long-term power supply projects and related contracts
involving hundreds of millions of dollars of long-term financial commitments.
Vero Beach argues that Indian River Shores’ list of public interest
considerations for modifying the Territorial Orders has nothing to do with the
Commission’s Section 366.04(2), F.S., territorial jurisdiction or its Section
366.04(5), F.S., Grid Bill responsibilities. Instead, Vero Beach alleges, the
list is merely a pretextual claim based solely on Indian River Shores’ interest
and not on the general public interest. Vero Beach further argues that the
Petition’s list of public interest considerations ignores the impacts that the
requested modification to the Territorial Orders would have on the 32,000
customers served by Vero Beach outside Indian River Shores.
Analysis
The
Petition does not show a change in circumstances that led to issuance of the
Territorial Orders.
It is staff’s opinion that Article
VIII, Section 2(c) of the Florida Constitution did not require the Commission
to obtain the consent of Indian River Shores in 1972 or subsequent proceedings
as a prerequisite, or condition precedent, to the Commission approving the
territorial agreements between FPL and Vero Beach. Article
VIII, Section 2, Municipalities, states:
(c) ANNEXATION. Municipal annexation of unincorporated
territory, merger of municipalities, and exercise of extra-territorial powers
by municipalities shall be as provided by general or special law.
A plain reading of Article VIII,
Section 2(c) is that Vero Beach’s authority to supply electricity outside its
boundaries must come from general or special law. It is staff’s opinion that
Vero Beach is providing electric service to customers in the territory approved
in the Territorial Orders as provided by general law, Section 366.04, F.S.
There is no additional constitutional requirement in Article VIII, Section 2(c)
for the Commission to obtain Indian River Shores’ consent as a condition
precedent to approving the territorial agreements between FPL and Vero Beach. Likewise,
Section 366.04, F.S., contains no requirement for the Commission to obtain
Indian River Shores’ consent as a condition precedent to approving the
territorial agreements between FPL and Vero Beach in order for Vero Beach to
provide electric service within Indian River Shores.
Staff disagrees with Indian River
Shores’ argument that the constitutional phrase “exercise of extra-territorial
powers by municipalities shall be as provided by general or special law” means
that Section 366.04(2)(d), F.S., is not general law authorizing Vero Beach to
provide electric service in Indian River Shores pursuant to the Territorial
Orders. In Ford v. Orlando Utilities
Commission, 629 So. 2d 845, 847 (Fla. 1994), relied upon by Indian River
Shores, the Court found that where a municipality locates an electrical
generating plant on its property in another county to supply electricity to
that municipality’s residents, but does not supply any electrical power to the
county residents, the property is exempt from ad valorem taxation. Ford found that the Orlando Utilities Commission had statutory power to acquire
and operate a utility plant in a neighboring county and that production of
energy was a municipal purpose, and therefore it was exempt from taxation by
the neighboring county. Ford does not
address or support Indian River Shores’ argument that Section 366.04, F.S., is
not the general law pursuant to which Vero Beach is providing electric service
to Indian River Shores.
Staff also disagrees with Indian River Shores’ characterization
that the Commission has acknowledged that a territorial order does not provide
a municipal utility the inherent statutory authority to provide electric service
outside its municipal boundaries. In the Reedy Creek Order, cited by Indian River Shores for this proposition, a joint
petition to amend a territorial agreement
was brought to the Commission for approval in order to reflect de-annexation of
a planned development area from the Reedy Creek Improvement District political
boundary and to avoid any potential for uneconomic duplication of electric
facilities. The Commission approved the petition pursuant to Section
366.04(2)(d), F.S., giving consideration to factors of Rule 25-6.0440(2),
F.A.C., and noting that there were no existing customers affected by the
proposed territory amendment. The Commission order stated that the joint
petition alleged that Reedy Creek Improvement District, pursuant to its
charter, could not furnish retail electric power outside of its boundary. The
Commission found that the amended territorial agreement appeared to eliminate
existing or potential uneconomic duplication of facilities and did not cause a
decrease in the reliability of electric service to existing or future
ratepayers. There was no issue before the Commission concerning whether a municipality
providing service within the boundaries of another municipality under a
territorial order is considered to be providing service pursuant to general
law.
Rule 25-6.0441(2)(d), F.A.C., provides that in resolving territorial
disputes, the Commission may consider customer preference if all other factors
are substantially equal. Rule 25-6.0442, F.A.C., provides that any
substantially affected customer shall have the right to intervene in
proceedings to approve a territorial agreement or resolve a territorial
dispute. However, Indian River Shores did not participate in any of the four
FPL – Vero Beach territorial agreement dockets before the Commission. Further, it does not appear that any issue was
raised in any of those proceedings concerning the need for Indian River Shores’
consent as a condition precedent to the Commission approving the territorial
agreements. In addition, neither
the 1968 Contract nor the Franchise Agreement makes any reference to Article
VIII, Section 2(c), nor do they contain any language that Indian River Shores
is giving temporary consent to Vero Beach as a condition precedent to the
Commission approving the territorial agreements between FPL and Vero Beach.
Even if the 1968 Contract or the Franchise Agreement were interpreted
as containing language whereby Indian River Shores gave its temporary consent
to Vero Beach to provide electric service within Indian River Shores, that
language would not affect the validity of the Territorial Orders. In the case
of conflict between Commission and municipality jurisdiction, the Commission’s
lawful orders shall in each instance prevail. See Indian River County, 41 Fla. L. Weekly S 228 (citing to Section
366.04(1), F.S.). Expiration of the Franchise Agreement on November 6, 2016,
will not affect the validity of the Territorial Orders. Vero Beach will
continue to have the right and obligation to provide electric service to the
entire territory within the boundaries established in the Territorial Orders,
including that portion of Indian River Shores located south of Old Winter Beach
Road. See Id. (affirming the
Commission’s order declaring that upon expiration of the franchise agreement
between Vero Beach and Indian River County on March 4, 2017, Vero Beach has the
right and obligation to continue to provide retail electric service in the
territory described in the Territorial Orders).
Because Indian River Shores’
consent was not required by the Florida Constitution or Section 366.04, F.S.,
for the Commission’s approval of the Vero Beach – FPL territorial agreements,
Indian River Shores’ alleged withdrawal of consent is not a change in any
circumstance that was considered or relied upon by the Commission in issuing
the Territorial Orders. For this reason, Indian River Shores’ alleged withdrawal of consent when the Franchise
Agreement expires on November 6, 2016, is not a change in circumstance
requiring modification of the Territorial Orders.
The
Petition fails to show that modifying the Territorial Orders is necessary to
the public interest or that it would not be detrimental to the public interest.
Indian River Shores asks that the Commission ensure that Indian River
Shores residents currently served by Vero Beach will be transitioned to service
by FPL in an orderly and efficient manner. However, neither FPL nor Vero Beach
has asked the Commission to modify the Territorial Orders by approving a
territorial agreement or resolving a dispute between them. FPL alleges in its Petition
to Intervene that it is ready, willing, and able to serve all of Indian River
Shores residents “assuming reasonable terms were reached for the acquisition
of the City of Vero Beach’s electric facilities in that area.” (emphasis
added) However, there is no indication in
this docket of any agreement for transfer of lines or facilities from Vero
Beach to FPL. The filings show that by letter of August 12, 2015, FPL made a
$13 million offer to purchase Vero Beach’s facilities in Indian River Shores
that was rejected by Vero Beach. The Commission does not have jurisdiction to
order Vero Beach to sell its facilities to FPL. There is no information before
the Commission concerning how a transfer of facilities would occur, the costs
or facilities involved, impact of such a transfer on all affected customers, or
other information normally considered by the Commission in approving a
territorial agreement or resolving a territorial dispute. Without this
information, the Commission cannot ensure an orderly and efficient transition
of service from Vero Beach to FPL or determine whether such a transfer would be
necessary in the public interest.
Conclusion
For the reasons
set forth above, staff recommends that the Commission should deny on the
merits Indian River Shores’ Petition for Modification of Territorial Order
Based on Changed Legal Circumstances Emanating from Article VIII, Section 2(c)
of the Florida Constitution because: (1) it fails to demonstrate that
modification of the Territorial Orders is necessary in the public interest due
to changed circumstances not present in the proceedings which led to the
Territorial Orders; and (2) it fails to show that modification would not be
detrimental to the public interest.
Issue 6:
Should this docket be closed?
Recommendation:
If the Commission approves staff’s recommendation,
and if no person whose substantial interests are affected by the proposed
agency action in Issue 5 files a protest within 21 days of the issuance of the
Order, this docket should be closed upon the issuance of a consummating order.
(Cowdery)
Staff Analysis:
Issue 5 should be issued as a proposed agency
action. If the Commission approves staff’s recommendation, and if no person
whose substantial interests are affected by the proposed agency action files a
protest of Issue 5 within 21 days of the issuance of the Order, this docket
should be closed upon the issuance of a consummating order.
