Case Background
On October 16, 2018, Duke Energy Florida, LLC (DEF) filed
a petition pursuant to Section 120.542, Florida Statutes (F.S.), requesting a
temporary waiver of Rule 25-6.100, Florida Administrative Code (F.A.C.), which
sets forth customer billing requirements. Pursuant to the rule, utilities are
required to render monthly bills. DEF is requesting that it be granted a
temporary waiver from the requirement of Rule 25-6.100, F.A.C., that DEF render
monthly bills to its customers in Bay, Gulf, Franklin, and Wakulla Counties
until completion of its restoration efforts in response to Hurricane Michael.
Pursuant to Section 120.542(6), F.S., notice of the petition
was published in the October, 18, 2018 edition of the Florida Administrative
Register, Volume 44, Number 204. As of the date of the filing of this
recommendation, no comments have been submitted on the petition.
Staff’s recommendation addresses whether DEF’s petition
should be granted. The Commission has jurisdiction pursuant to Sections
120.542, 366.03, 366.04, 366.05, 366.051, 366.06, and 366.8260, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant DEF’s petition for a
temporary waiver of Rule 25-6.100, F.A.C., Customer Billings?
Recommendation:
Yes, the Commission should grant DEF’s petition for
a temporary waiver of the requirement in Rule 25-6.100, F.A.C., that DEF render
monthly bills to its customers in Bay, Gulf, Franklin, and Wakulla Counties until
DEF completes its restoration efforts in response to Hurricane Michael.
(Cowdery, Doherty, Draper)
Staff Analysis:
DEF is requesting that it be granted a temporary
waiver from the requirement of Rule 25-6.100, F.A.C., that DEF render monthly
bills to its customers in Bay, Gulf, Franklin, and Wakulla Counties until
completion of restoration efforts in response to Hurricane Michael.
Legal Standard for Rule Waivers
Section 120.542(2), F.S., authorizes the Commission to
grant waivers from its rules “when the person subject to the rule demonstrates
that the purpose of the underlying statute will be or has been achieved by
other means by the person and when application of a rule would create a substantial
hardship or would violate the principles of fairness.” “Substantial hardship”
is defined as “a demonstrated economic, technological, legal, or other type of hardship”
to the person requesting the variance. A violation of the “principles of
fairness” occurs when “the literal application of a rule affects a particular
person in a manner significantly different from the way it affects other
similarly situated persons who are subject to the rule.”
DEF’s Petition
DEF states
that compliance with Rule 25-6.100, F.A.C., necessitates good physical access
to the residences of DEF customers. DEF states that the residual effects of
Hurricane Michael have made roads in Bay, Gulf, Franklin, and Wakulla Counties
impassible due to flooding and large quantities of debris. DEF states that as a
consequence, the U.S. Postal Service does not have safe physical access to
customer residences in these counties and, thus, cannot deliver bills to these
customers. In addition, DEF states that even those residences accessible by
normal means are not serviceable by mail because many mailboxes were either
destroyed or made non-functional by the hurricane. DEF asserts that due to
circumstances beyond its control, it is unable to satisfy the requirements of
Rule 25-6.100, F.A.C.
DEF states
that unless it is granted a temporary waiver from Rule 25-6.100, F.A.C., it
will suffer a substantial hardship because DEF will be subject to scrutiny and
possible imposition of penalties by the Commission. It further asserts that the
literal application of the rule will violate the principles of fairness because
the present circumstances caused by Hurricane Michael affects DEF in a
significantly different manner than other utilities not impacted by the
hurricane.
DEF states
that the overall purpose of the statutory provisions implemented by Rule
25-6.100, F.A.C., is to ensure fair, reasonable, and timely charges are made by
utilities to their customers. DEF asserts that a temporary waiver of the rule
will serve this purpose because “[d]uring the short period of time that DEF
suspends bill rendering, DEF will not impose any interest or penalty on
customer bills” and “will provide necessary payment arrangement plans to any of
its customers that need additional time to pay their bills.” As soon as
restoration is complete in their county, DEF will provide the suspended bill
information to customers, so customers will receive all information related to
usage. Thus, DEF states that customers will not suffer any negative effect from
the waiver.
DEF further
states that there will be no adverse impact on service to DEF customers and
that the temporary rule waiver will enable these DEF customers “to focus the
limited resources they would otherwise have to dedicate to resolving their
utility bills to more pressing issues, such as returning to work and school and
to making repairs to their homes.” The company states that it will notify the
affected areas of the temporary suspensions of customer bills via text messages
and updates to its website, and it will issue a news release.
As mentioned
above, DEF will resume rendering bills to these customers when DEF’s restoration
efforts within the county are complete. It states that it is unable to give a
firm date at when it plans to resume billing due to the nature of the extensive
damage to these counties, but it will inform Commission staff when it resumes
its normal billing operations in the affected counties.
Conclusion
Staff believes that DEF has met the requirements of
Section 120.542, F.S. DEF has demonstrated that the purpose of the underlying
statutes will be achieved by other means and that application of Rule 25-6.100,
F.A.C., would place a substantial hardship on DEF and violate the principles of
fairness. Therefore, staff recommends that the Commission grant DEF’s petition
for a temporary waiver of the requirement in Rule 25-6.100, F.A.C., that DEF
render monthly bills to its customers in Bay, Gulf, Franklin, and Wakulla
Counties until DEF completes its restoration efforts in response to Hurricane
Michael.
Issue 2:
Should this docket be closed?
Recommendation:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, a consummating order should be issued and the docket
should be closed. (Cowdery)
Staff Analysis:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, a consummating order should be issued and the docket
should be closed.
