Case Background
This
docket pertains to a territorial dispute between Gulf Coast Electric
Cooperative, Inc. (GCEC) and Gulf Power Company (Gulf Power) over new service
to a sewage treatment lift facility (Lift Facility) that was constructed and
operated by St. Joe Company (St. Joe). The ultimate customer of the Lift
Facility is to be Bay County, and the Lift Facility was scheduled to be
transferred to Bay County upon completion and commissioning of the facility.
The Commission has authority, pursuant to Section 366.04(2)(e), Florida
Statutes (F.S.), “to resolve, upon petition of a utility or on its own motion,
any territorial dispute involving service areas between and among rural
electric cooperatives, municipal electric utilities, and other electric
utilities under its jurisdiction.” The Commission’s authority is intended to
avoid the uneconomic duplication of facilities between utilities.
In
1998, in Docket No. 930885-EU, In re:
Petition to resolve territorial dispute with Gulf Coast Electric Cooperative,
Inc. by Gulf Power Company, in response to a long-standing dispute between
GCEC and Gulf Power regarding electric service in certain areas of Washington
and Bay Counties, the Commission ordered the parties “to establish detailed
procedures and guidelines addressing subtransmission, distribution, and
requests for new service which are enforceable with the respective company.” Subsequently, the Commission approved, in
that same docket and pursuant to Order Nos. PSC-01-0891-PAA-EU, issued April 9,
2001, and PSC-01-0891A-PAA-EU, issued March 26, 2002 (collectively referred to
herein as the Territorial Order), a Territorial Agreement executed between
GCEC and Gulf Power in 2000 (Territorial Agreement).
The
Territorial Order states that its purpose was to “avoid further uneconomic
duplication of the facilities of each other” and, specifically, “to assist in
determining whether or not they should agree to honor the request for electric
service by a Customer or should otherwise proceed with the construction of
additional facilities.” Owing to the unique territorial issues identified in
the Docket, including the close proximity and commingling of GCEC and Gulf
Power’s electric facilities, the Territorial Agreement approved by the
Territorial Order does not use a traditional “lines-on-the-ground” territorial
boundary. Rather, the Territorial Agreement utilizes several procedures for the
parties to follow upon receiving a request for service from a customer—these
procedures are primarily based upon the distance from the requested utility’s
closest existing facilities to the requested service location and the load
requirements of the requested service location, or, alternatively, whether the
cost of service of the requested utility would not be significantly more than
that of the other utility.
In
October of 2017, Gulf Power received a verbal request from St. Joe to provide
electric service to the Lift Facility. Subsequently, in December of 2017, GCEC
received a request from Bay County for electric service to the Lift Facility. On January 17, 2018, an email from St.
Joe’s Vice President of Regulatory Affairs informed GCEC that St. Joe did not
plan to move forward with GCEC on the Lift Facility and that it was “committed
to Gulf Power” for servicing the Lift Facility.
On
October 20, 2017, an Engineering Supervisor for Gulf Power, Joshua Rogers, sent
an email to Peyton Gleaton, the Vice President for Engineering at GCEC, stating
the following:
Pursuant to section 2.3(a) of the agreement
between Gulf Power and GCEC, I am notifying GCEC of a customer's request for
electrical service from Gulf Power for a new lift station on parcel
26597-000-000. Construction would not result in any duplication of facilities.
Section
2.3 of the Territorial Agreement provides that, if a utility receives a
bonafide request for service from a customer, and that requested utility does
not meet the requirements to provide electric service without notice pursuant
to Section 2.2, that requested utility may provide electric service if that
requested utility believes that its cost of service would not be “significantly
more” that that of the other utility. To provide such service under Section 2.3,
the requested utility must notify the other utility of the requested utility’s
intent to provide service, after which the other utility has five days to
notify that the other utility objects to such provision of service. If the
other utility fails to respond within this time frame, the requested utility
may provide the requested electric service under the terms of Section 2.3.
After
receipt of the October 20, 2017, email, GCEC did not object or otherwise respond
to Gulf Power within the 5 days as provided in Section 2.3. However, on January
8, 2018, GCEC did send an email notice to Gulf Power that GCEC had received a
request from Bay County to provide service to the Lift Facility. On January 12, 2018, Gulf Power informed
GCEC that Gulf Power had already begun preparations to serve the Lift Facility
and that GCEC was “foreclosed” from objecting to Gulf Power providing service
to the Lift Facility, pursuant to the Territorial Order, due to GCEC’s failure
to respond to the October 20 email from Gulf Power. According to the parties, during an informal
meeting with Commission staff on June 21, 2018, Gulf Power has subsequently
completed its connection to the Lift Facility and the Lift Facility is now
receiving electric service from Gulf Power.
On
May 23, 2018, GCEC filed its Complaint against Gulf Power seeking expedited
enforcement of the Territorial Agreement as approved by the Commission and
embodied in the Territorial Order. GCEC claims that Gulf Power is in violation
of the Territorial Order, in part, because the October 20, 2017, email from
Gulf Power was “opaque” and “failed to provide all relevant information about
the request,” and thus, did not provide adequate notice as required under
Section 2.3 of the Territorial Agreement. Gulf Power argued that the notice was sufficient,
and, consequently, GCEC “is foreclosed from objecting to [Gulf Power] honoring
its customer's request for service, and there is no requirement or need to
compare costs or take any additional actions under the remaining terms of the
Territorial [Order].”
On
June 6, 2018, Gulf Power filed a Motion for Summary Final Order arguing,
primarily, that neither party disputes that GCEC received the notice from Gulf
Power, that the Territorial Order and notice “speak for themselves,” and that
the matter “can be resolved as a matter of law and contract interpretation
based upon the undisputed facts set forth in the parties’ pleadings.” GCEC responded in opposition to this
Motion for Summary Final Order on June 13, 2018, arguing that summary final
order in this case was premature and should be denied because discovery had not
been completed, numerous genuine issues of fact remained, and that there was
pending discovery regarding whether “GCEC waived the right to contest Gulf
Power providing service.” On July 23, 2018, the Prehearing Officer
issued an Order Setting Procedure to Consider Motion for Summary Final Order, Order
No. PSC-2018-0357-PCO-EU (Procedural Order). The Procedural Order stated that “the
threshold question for this dispute is whether the October 20, 2017, email was
sufficient notice under the terms of the Territorial Agreement.” The Procedural Order allowed for limited
discovery and the filing of briefs regarding this issue and whether the
Commission should grant Gulf Power’s Motion for Summary Final Order. Both parties filed briefs on September 11,
2018. GCEC also included in its brief its own Motion for Summary Final Order
and a separate request for oral argument. On September 18, 2018, Gulf Power
responded in opposition to GCEC’s Motion for Summary Final Order.
Staff’s recommendation addresses
GCEC’s request for Oral Argument, and Gulf Power and GCEC’s Motions for Summary
Final Order. The Commission has jurisdiction pursuant to Section 366.04, F.S.
Discussion
of Issues
Issue 2:
Should Gulf Power’s Motion for Summary Final Order
be granted?
Recommendation:
Yes. Gulf Power’s Motion for Summary Final Order
should be granted. (Schrader)
Staff Analysis:
The Procedural Order specified three issues for
consideration on whether to grant or deny Gulf Power’s Motion for Summary Final
Order:
(1) Whether Section 2.3 of the
Territorial Agreement is the proper procedure, pursuant to the Territorial
Order, to determine which utility should provide electric service to the lift
facility.
(2) If Section 2.3 is the proper
procedure, whether the October 20, 2017, email notice provided by Gulf Power to
GCEC under Section 2.3 of the Territorial Agreement concerning electric service
to the lift facility was sufficient for Gulf Power to provide service.
(3) Should Gulf Power’s Motion
for Summary Final Order be granted?
Commission staff’s analysis of these issues for
consideration is detailed below.
Standard for Motion for Summary Final
Order
Section 120.57(1)(h), F.S., requires that, in order to
grant a motion for summary final order, it must be determined from case “pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, that no genuine issue as to any material fact exists and
that the moving party is entitled as a matter of law to the entry of a final
order.” The Commission has previously stated that “the standard for granting a summary
final order is very high.”
In general, “a summary judgment should not be granted
unless the facts are so crystalized that nothing remains but questions of law,”
and “must show conclusively the absence of any genuine issue of material fact
and the court must draw every possible inference in favor of the party against
whom a summary judgment is sought.” Moore v. Morris, 475 So. 2d 666, 668
(Fla. 1985); see also City of Clermont,
Fla. v. Lake City Util. Servs. , Inc., 760 So. 2d 1123, 1124 (5th DCA 2000),
and Wills v. Sears, Roebuck & Co.,
351 So.2d 29 (Fla.1977). The interpretation of a written document, such as the
Territorial Agreement here, presents a question of law. See Jaar v. Univ. of Miami,
474 So. 2d 239, 242 (Fla. 3d DCA 1985). As discussed below, staff recommends
that Gulf Power has conclusively demonstrated that there is no genuine issue of
material fact remaining in this case. All that remains is for the Commission to
interpret the Territorial Agreement and the Territorial Order into which it is
embodied, and for the Commission to rule on Gulf Power’s Motion for Summary
Final Order as a matter of law.
Whether Section 2.3 of the Territorial
Agreement is the Proper Procedure to Determine which Utility Should Provide
Service to the Lift Facility
Section 2.1 of the Territorial Agreement states that “upon
receiving a bona-fide request for service from a Customer, a Utility may agree
to provide the requested service if the conditions of either Section 2.2 or
Section 2.3 below are met.” (emphasis added) In this case, Gulf Power does not
argue that it meets the load and distance criteria of Section 2.2. However, Gulf
Power does claim that it meets the criteria of Section 2.3 of the Territorial
Agreement, which states:
2.3 In any instance where the Load and
distance criteria of Section 2.2 are not met but the requested Utility believes
that its Cost of Service would not be significantly more than that of the other
Utility, the following procedure shall be used to determine if the requested
Utility may agree to provide service:
(a) The
requested Utility is to notify the other Utility of the Customer's request,
providing all relevant information about the request.
(b) If the other Utility believes that its
facilities would be uneconomically duplicated if the request is honored, it has
five (5) working days from receipt of notice to request a meeting or other
method to be conducted within ten (10) working days for the purpose of
comparing each Utility's Cost of Service. Absent such a request or upon
notification from the other Utility of no objection to the requested Utility's
providing the service, the requested Utility may agree to provide service.
(c) At the meeting
scheduled pursuant to 2.3(b) or in some other mutually acceptable method, each
Utility is to present to the other Utility its estimated Cost of Service,
including all supporting details (type and amount of equipment, labor rates,
overheads, etc.). For Loads greater than 1,000 kVA information as to the
percentage of substation and feeder capacity that will be utilized and the
amount and nature of the cost allocations of such utilization included in the
Cost of Service are to be provided.
(d) Upon agreement as to each Utility's Cost of
Service, the requested Utility may agree to provide service to the Customer if
either of the following conditions are met:
(i) The requested Utility's Cost of Service does not
exceed the other Utility's Cost of Service by more than $15,000.
(ii) The requested Utility's Cost of Service does
not exceed the other Utility's Cost of Service by more than twenty-five percent
(25%).
(e) Notwithstanding
the other provisions of this Section 2.3, no Utility shall agree to provide
service to a Customer under the provisions of this Section 2.3 if the Load is less
than or equal to 1000 kVA, the requested Utility's Existing Facilities are further
than 10,000 feet from the Point of Delivery, and the other Utility's Existing Facilities
are located in a roadway or other right-of-way abutting the Customer's premises.
GCEC essentially argues that since Gulf Power did not
receive a “bona fide” request for service from St. Joe as required by Section
2.1 of the Territorial Agreement, it cannot invoke Section 2.3 of the
Territorial Agreement. As a result, any attempt by Gulf Power to provide
service to the Lift Facility would be void.
To support its allegation that the request from St. Joe to
provide service to the Lift Facility was not “bona fide,” GCEC appears to argue
that the request received by Gulf Power from St. Joe was verbal, and that Gulf
Power had not finalized its cost estimates prior to sending notice to GCEC. The
Territorial Agreement does not define what constitutes a “bona fide request.”
Bona fide is Latin for “good faith” and Black’s Law Dictionary defines the term
as “in or with good faith; honestly, openly, and sincerely; without deceit or
fraud. Truly; actually; without simulation or pretense.” GCEC
does not present any facts that demonstrate the request from St. Joe to Gulf
Power was anything other than in good faith. Whether the request was verbal in
nature, or whether Gulf Power still had cost estimates to complete, does not
indicate that the request was not in good faith, nor could one infer such a
conclusion from those facts. Further, if GCEC had questions as to the
sufficiency or genuineness of the request from St. Joe to Gulf Power, it had
every opportunity to address those when it received the notice from Gulf Power.
GCEC did not do so.
Secondly, even if the request from Gulf Power was a “bona
fide” request, GCEC asserts that Gulf Power did not have a reasonable basis to
believe that it could provide electric service for not significantly more than
GCEC. GCEC first argues that Gulf Power’s basis or conclusion is unreasonable
because Gulf Power’s estimated cost of service, by comparison, exceeds GCEC’s
estimated cost of service by an amount or percentage greater than those
specified in Section 2.3 of the Territorial Agreement. However, by failing to
respond to Gulf Power’s notice, GCEC gave up its right to compare estimated
costs. The plain terms of the Territorial Agreement in Section 2.3(b) require
that GCEC exercise its right to object to Gulf Power’s notice under Section 2.3
as a condition precedent to comparing cost of service. Therefore, even if GCEC correctly
believed that “its facilities would be uneconomically duplicated” if Gulf Power
provided service to the Lift Facility, those facts would be irrelevant in
determining, in this circumstance, whether Gulf Power has the right to provide
service under Sections 2.3(a) and (b) of the agreement.
GCEC also asserts that Gulf Power’s belief was
unreasonable because Mr. Rogers “has no documents showing how he compared Gulf
Power’s cost of serving” and that he completed the cost comparisons “in his
head.”
However, the Territorial Order, in specifying what a utility must review and
calculate upon agreeing to provide service under the Territorial Agreement,
does not specify how such calculations must be arrived at, nor does it require
records be kept of these calculations. Furthermore, it is not unreasonable,
especially given the undisputed difference in the distance of the existing
facilities of GCEC and Gulf Power from the lift station,
that an experienced engineer, with significant experience in calculating cost
of service, could arrive at a reasonable belief that the cost of service would
not differ significantly between GCEC and Gulf Power without making intensive
calculations. Regardless, if GCEC believed that Gulf Power could not provide
electric service for not significantly more than GCEC, GCEC had every
opportunity to address such beliefs when it received the notice from Gulf
Power. GCEC did not exercise this opportunity under the terms of the
Territorial Agreement.
For the reasons stated above, staff recommends that
Section 2.3 of the Territorial Agreement is the proper procedure to determine
the utility that should provide service to the Lift Facility.
Whether the Notice was Sufficient
GCEC argues that the notice received from Gulf Power was
deficient, and did not meet the requirements of the Territorial Agreement in
three ways:
1)
The notice was sent to a person, Mr. Gleaton, that was
“never authorized or designated” to receive such notice, and that the Vice
President for Engineering of GCEC was not a person that was contemplated under
the Territorial Agreement that could receive such notice.
2)
An email was not an acceptable method to deliver notice
under the Territorial Agreement.
3)
The notice did not “provide all relevant information”
regarding the request for service for the Lift Facility.
One of the major difficulties in this docket is that the Territorial Agreement
is silent on the person or persons who can receive a notice pursuant to the
Territorial Agreement; what form the notice must take, i.e., email, U.S. Mail,
or certified mail; and what information must be included in the notice, i.e.,
what type of information would provide “all relevant information about the
request” as required under Section 2.3(a) of the Agreement. GCEC makes several
arguments to read additional terms into the Territorial Agreement in order to
address this lack of specificity. In this case, however, reading additional
requirements into the Territorial Agreement is unnecessary. This case can be
determined by looking at the four corners of the Territorial Agreement, which
is embodied into the Territorial Order.
GCEC states that there are a number of public policy
implications to consider in this matter, including costs to serve and
uneconomic duplication of facilities. While this is true, it is also very
important that parties to agreements ratified by the Commission should be able
to rely upon the plain written terms of such agreements which are embodied into
Commission orders. These orders also carry the Commission’s “public interest”
imprimatur. Otherwise, parties may be less inclined to reach the settlements
and agreements that the Commission encourages. To this end, the Commission
should generally avoid reading terms into an agreement unless there is an
overriding necessity to do so.
Staff believes that there is no such necessity to do so in this case.
Notice may be of two types, actual or constructive. Constructive
notice is derived from an inference of knowledge by operation of law, such as
with a recording statute. McCausland v.
Davis, 204 So. 2d 334, 334–36 (Fla. 2d DCA 1967). Actual notice may be of
two kinds: “express, which includes what might be called direct information”
and “implied, which is said to include notice inferred from the fact that the
person had means of knowledge, which it was [that person’s] duty to use and...did
not use.” Sapp v. Warner, 141 So.
124, 127 (Fla. 1932), see also 38
Fla. Jur 2d Notice and Notices § 2.
It is also well settled that when a party has “either
actual or constructive information and notice sufficient to put him on inquiry,”
such party, for their own protection, should engage in such inquiry. If such
party declines to make such inquiry, that party “must suffer the consequence of
[their] neglect.” Sickler v. Melbourne
State Bank, 159 So. 678, 679 (Fla. 1935).
While GCEC makes a number of claims as to the deficiency
of the notice provided by Gulf Power, staff recommends it is clear, as shown
below, that GCEC had adequate information to put it on notice to inquire
further of Gulf Power if it was unclear as to Gulf Power’s intentions. Certainly,
after receiving the email from Gulf Power, GCEC had the means to inquire
further of Gulf Power or to object to Gulf Power’s provision of service to the Lift
Facility within the timeframe specified in Section 2.3 of the Territorial
Agreement. This is not a case of “waiver” as GCEC claims.
Rather, it is a case of GCEC failing to take reasonably prudent care to protect
or assert its own rights under the Territorial Agreement. GCEC should not now
be insulated from the consequences of its inaction.
1)
Mr. Gleaton as Recipient of Notice
In its brief to the Commission, GCEC states that Mr.
Gleaton was never authorized, nor was a person under his title, Vice President
of Engineering, ever authorized to receive notice under the Territorial Agreement.
GCEC also cites to the sworn statement of its lead counsel in the Territorial
Order docket that it was never “anticipated, intended, or agreed that ‘notice’
required to be provided under the Territorial Orders could be effected by
service of notice to anyone at GCEC, other than through notice to its General
Manager and its two attorneys of record, myself and J. Patrick Floyd, at their
mailing addresses.”
These requirements, however, are not expressly enumerated in the Territorial
Agreement or the Territorial Order into which the agreement is embodied.
GCEC seems to assert that the only persons who could
receive notice pursuant to the Territorial Agreement are its General Manager
and two attorneys of record from a docket opened 25 years ago and which was closed
in 2002. Staff believes that such an assertion and interpretation would make
little practical sense, nor could it be reasonably implied from the Territorial
Agreement. Moreover, such an explicit requirement could have been contained
within the Territorial Agreement, but it was not.
Mr. Gleaton is an upper-level employee of GCEC, with
significant high-level responsibilities within that organization, including the
following:
1) “Leading
the technical aspects of planning, design and development of GCEC’s electric
distribution system;”
2) “To
ensure that GCEC’s distribution systems are in compliance with cooperative, governmental
and legal guidelines and standards to ensure both safety and delivery of the best
possible level of service to cooperative members;”
3) “Communicat[ing]
and coordinat[ing] work with managers and employees of other agencies, such as
PowerSouth, Tyndall Air Force Base, HiLine Engineering...and the Florida Public
Service Commission to ensure that GCEC’s system meets all professional and
legal standards;” and
4) “Manag[ing]
the day to day operations of the Engineering Department, GIS-IT department and
the warehouse.”
Furthermore, Mr. Gleaton stated that it is not uncommon
for him to respond to and assist with requests for electrical service from
customers, and he is
prominently featured on the “Contact Us” page of GCEC’s website along with
other top executives of GCEC including its Chief Executive Officer/General
Manager and Chief Operating Officer.
Mr. Gleaton is clearly held out by GCEC as not only a high-level executive of
the company, but also one that can receive correspondence and inquiries on its
behalf.
Given these facts, staff recommends that the Commission
should find that a person such as Mr. Gleaton may receive notice under the
Territorial Agreement, and that GCEC was reasonably put on notice by
communication with Mr. Gleaton.
2)
Emailing of Notice
GCEC argues that email notice was never contemplated under
the Territorial Agreement and, further, that custom and usage would dictate the
use of mail or certified mail. However,
neither was email notice expressly prohibited. In fact, the form of notice was
not limited or specified in the Territorial Agreement.
Regardless, even taking GCEC’s arguments regarding the use
of email as true, it does not change the fact that, on Mr. Gleaton’s own
admission, he received the email and that he forwarded the email on to another
GCEC employee, Francis Hinton, for further consideration.
Thus, not only did a high-level executive of GCEC receive the email from Gulf
Power, that executive took action upon it. From these facts, staff believes it
is clear that GCEC was not prejudiced by the notice sent from Gulf Power being
sent via email versus another method. Staff believes that such receipt would
have placed GCEC on reasonable notice to inquire further of Gulf Power.
3)
Information Included in Notice
GCEC also argues that the email from Mr. Rogers to Mr.
Gleaton “failed to provide” certain “vital information that would allow GCEC to
make any ‘knowing’ decision” in regards to the Territorial Agreement.
Furthermore, GCEC states that Mr. Gleaton had no knowledge of the Territorial
Agreement at the time of the email. However, it is not disputed that the email
did contain the following information:
1)
Gulf Power received a request for electrical service
from a customer.
2)
A citation to an agreement between the parties along
with a citation to a particular provision of that agreement.
3)
The parcel number for the customer property in question
(albeit without the county where the parcel number is located).
While Mr. Rogers could, and perhaps should, have included
the county for the parcel number cited in the email, Mr. Gleaton received
enough information from the email that he could have gleaned, with any prudent
or reasonable inquiry, the intentions of Gulf Power. Furthermore, by Mr. Gleaton’s
own admission, he correctly surmised the parcel number was in Bay County since
he looked up the parcel number in the Bay County property appraiser’s website
and based, at least partly, his assumption of the location of the Lift Facility
on the map location generated by that search.
Given this, it is difficult to reconcile GCEC’s position that the notice was
deficient due to the fact that it did not include a county. Mr. Gleaton’s
actions do not demonstrate that he was confused as to the county referenced in
the notice; and even if he was confused, it would have been easy for him to
inquire further of Mr. Rogers to ascertain it.
In regards to Mr. Gleaton’s lack of knowledge of the
Territorial Agreement, GCEC is certainly charged with knowledge of any order of
the Commission pertaining to it. Thus, it is fair to expect that, with any
reasonable inquiry into his own organization, Mr. Gleaton would have been able
to determine the agreement Mr. Rogers was referencing in his email.
Finally, GCEC states that “in order to comply with and
achieve the purpose of the ‘Territorial Order’ the utility receiving the
request for service must, at a minimum, provide the other utility with notice
of the size of the load, the precise location of the point of delivery, and the
precise location of the requested utility’s existing facilities.”
However, the Territorial Agreement does not contain such specificity. It simply
states that the utility receiving the request provide “all relevant information
about the request.” If GCEC thought that the “minimum” information it claims
was “integral to conducting a cost comparison and uneconomic duplication of
facilities,” it
certainly had the opportunity to follow up with Gulf Power to request it, but
it did not. If such information was so vital for GCEC to make a decision, it
makes little sense as to why GCEC would fail to inquire further about a notice
that did not include it.
Staff recommends that Notice was Sufficient
Staff believes that the essential material facts of
this case, in regards to Gulf Power’s notice, as demonstrated through, the
pleadings, depositions, and discovery conducted in this case, are as follows:
1)
Mr. Rogers of Gulf Power sent an email to Mr. Gleaton of GCEC on October 20,
2017.
2)
This email stated, “pursuant to section 2.3(a) of the agreement between Gulf
Power and GCEC, I am notifying GCEC of a customer's request for electrical
service from Gulf Power for a new lift station on parcel 26597-000-000.
Construction would not result in any duplication of facilities.”
3)
This email was received by Peyton Gleaton, the Vice President of Engineering
for GCEC.
These
facts are not in dispute. Given this, it is for the Commission to determine, as
an issue of law, whether the notice sent by Mr. Rogers of Gulf Power to Mr.
Gleaton of GCEC was sufficient notice under the terms of Section 2.3 of the Territorial
Agreement.
Based
on the undisputed facts shown above and the express requirements of the
Territorial Agreement, staff believes that the email notice sent by Gulf Power was
legally sufficient to place GCEC on notice of Gulf Power’s intention to serve
the Lift Facility. Mr. Gleaton was clearly held out by GCEC as not only a
high-level executive of the company, but also one that can receive
correspondence and inquiries on its behalf. GCEC was not prejudiced by the
notice from Gulf Power being sent via email versus another method. Finally, the
email contained adequate information to place GCEC on notice that Gulf Power
planned to service the Lift Facility. Also,
as shown above, if GCEC believed that Gulf Power’s notice was deficient, it had
every opportunity to inquire further of Gulf Power within the terms of the
Territorial Agreement, but declined to do so.
Whether Gulf Power’s
Motion for Summary Final Order Should be Granted
As stated, staff believes
that Section 2.3 of the Territorial Agreement is the proper procedure to determine
whether Gulf Power or GCEC should be allowed to provide service to the Lift
Facility. There is no dispute regarding the material facts of this case; the
parties do not dispute 1) that Mr. Rogers of Gulf Power sent the email notice,
2) the content of that email notice, 3) that Mr. Gleaton, a Vice President of
GCEC, received that email notice, and 4) that GCEC did not respond to that
email notice within 5 days. The undisputed material facts of this case
demonstrate that the email notice from Gulf Power was sufficient notice under
the terms of Section 2.3 of Territorial Agreement. Finally, staff also
believes, as shown above, that it is undisputed that GCEC failed to respond to
that notice within 5 days, as required in Section 2.3. Thus, staff recommends
that the Commission should find, as a matter of law and under the terms of the
Territorial Agreement, that GCEC’s failure to respond to that sufficient notice
within 5 days, as required in Section 2.3, forecloses it from objecting to Gulf
Power servicing the Lift Facility.
Based upon the pleadings, depositions, and discovery
conducted in this docket, staff concludes that the Commission should find that
Gulf Power has conclusively demonstrated that a genuine issue of material fact
does not remain in this case and that the Commission should rule upon this case
strictly as a matter of law. Based upon the foregoing, staff recommends that Gulf
Power’s Motion for Summary Final Order be granted, and that, under the terms of
the Territorial Agreement, Gulf Power may provide electric service to the Lift
Facility.
