Case Background
On February 8,
2019, IGS Solar, LLC (IGS Solar), filed a petition for a declaratory statement
(Petition). IGS Solar asks the Commission to declare that based on the facts
presented by IGS Solar:
(1)
IGS Solar’s proposed residential solar equipment lease,
as described by the Petition, will not be deemed to constitute the sale of
electricity;
(2)
IGS Solar will not be deemed a public utility under
Florida law by virtue of leasing its residential solar equipment to residential
consumer-lessees in Florida;
(3)
Florida customer-lessees who enter into IGS Solar’s
proposed residential solar lease equipment
will not be subject to the jurisdiction of, or regulation by, the
Commission; and
(4)
IGS Solar’s customer-lessees who enter into the
proposed lease will be entitled to electrically interconnect with electric
utilities and be deemed net metering customers, under Rule 25-6.065, F.A.C.
The Commission’s recent decisions in Order
No. PSC-2018-0251-DS-EQ, issued May 17, 2018, in Docket No. 20170273-EQ, In re: Petition of Sunrun Inc. for a
declaratory statement concerning the leasing of solar equipment (Sunrun); Order No. PSC-2018-0413-DS-EQ,
issued August 21, 2018, in Docket No. 20180124-EQ, In re: Petition of Vivint Solar Developer, LLC. for a declaratory
statement concerning the leasing of solar equipment (Vivint); and in Order No. PSC-2018-0065-DS-EQ, issued February 21,
2019, in Docket No. 20180221-EQ, Petition
by Tesla Inc., for a declaratory statement concerning the leasing of solar
equipment (Tesla), state the
Commission does not have jurisdiction over an individual company that
offers residential leases for solar equipment when the lease payments do not
vary based on generation.
Pursuant to Rule 28-105.0024, Florida
Administrative Code (F.A.C.), a Notice of Declaratory Statement was published
in the February 11, 2019, edition of the Florida Administrative Register,
informing interested persons of the Petition. There were no requests to
intervene filed. This recommendation addresses IGS Solar’s Petition for
Declaratory Statement. The Commission has jurisdiction pursuant to Section
120.565, F.S., and Chapter 366, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant IGS Solar’s Petition for
Declaratory Statement?
Recommendation:
(5)
Yes. Based on the facts presented by IGS
Solar, the Commission should grant IGS Solar’s Petition and declare: (1) IGS
Solar’s proposed residential solar equipment lease, as described in its Petition,
will not be deemed to constitute the sale of electricity; (2) IGS Solar will
not be deemed a public utility under Florida law by virtue of leasing its
residential solar equipment to residential consumer-lessees in Florida as
described in its Petition; (3) Florida customer-lessees who enter into IGS
Solar’s proposed residential solar equipment lease, as described in its
Petition, will not be subject to the jurisdiction of, or regulation by, the
Commission; and (4) Customer-lessees will be allowed to become net metering
customers if the customer-lessees meet the requirements of Rule 25-6.065, F.A.C.
The Commission should also state that its declaration is limited to the facts
described in IGS Solar’s Petition and would not apply to different, alternative
facts. (Harper, Crawford)
Staff Analysis:
Questions (1)-(3) of IGS Solar’s Petition ask
the Commission to declare that IGS Solar’s solar leasing program as described
in its Petition will not make IGS Solar or its customer-lessees public
utilities subject to the Commission’s jurisdiction under Section 366.02(1),
F.S. Staff did not review any part of
the Petition’s proposed draft lease, which starts on page 14 of the Petition,
because as the Commission stated previously in the Sunrun, Vivint, and Tesla
orders, approving IGS Solar’s draft lease does not fall within the Commission’s
jurisdiction. Thus, review of the lease is not necessary for the Commission’s
determination of the Petition.
Rule
28-105.001, F.A.C., Purpose and Use of Declaratory Statement, provides that a declaratory
statement is a means for resolving a controversy or answering questions or
doubts concerning the applicability of statutory provisions, rules, or orders
over which the agency has authority. As the Commission declared in Sunrun, Vivint, and Tesla, Rule
25-6.065, F.A.C., allows leases
for solar equipment without triggering the Commission’s jurisdiction, so long
as the lease payments do not depend on electric generation. Questions
(1)-(3) of IGS Solar’s Petition are virtually identical to the facts set forth
in Sunrun’s, Vivint’s, and Tesla’s Petitions. For this reason, IGS Solar’s Petition
as to questions (1)-(3) should be granted affirmatively.
Question
(4) of IGS Solar’s Petition is unclear. IGS Solar seems to ask the Commission
to state that customer-lessees, by virtue of entering into a proposed lease with
IGS Solar will automatically be entitled to electrically interconnect with
electric utilities and be deemed net metering customers under Rule 25-6.065,
F.A.C. If that is the question asked by IGS Solar, then Question (4) of the
declaratory statement should be denied because a solar lease by itself does not
entitle a customer to electrically interconnect with electric utilities and net
meter. Instead, the Commission should declare that customer-lessees will be allowed
to become net metering customers if the customer-lessees meet all of the
requirements of Rule 25-6.065, F.A.C.
Conclusion
For the
reasons set forth above, staff recommends that the Commission grant IGS Solar’s
Petition for Declaratory Statement and declare: (1) IGS Solar’s proposed
residential solar equipment lease, as described in its Petition, will not be
deemed to constitute the sale of electricity; (2) IGS Solar will not be deemed
a public utility under Florida law by virtue of leasing its residential solar
equipment to residential consumer-lessees in Florida as described in its
Petition; (3) Florida customer-lessees who enter into IGS Solar’s proposed residential
solar equipment lease, as described in its Petition, will not be subject to the
jurisdiction of, or regulation by, the Commission; and (4) Customer lessees
will be allowed to become net metering customers if the customer-lessees meet
the requirements of Rule 25-6.065, F.A.C. The Commission should also state that
its declaration is limited to the facts described in IGS Solar’s Petition and
would not apply to different, alternative facts. However, for those with an
identical fact pattern to Sunrun’s,
Vivint’s, Tesla's or IGS Solar’s Petitions, these declarations have
precedential significance and individual declaratory statements are not
necessary.
Issue 2:
Should this docket be closed?
Recommendation:
Yes, if the Commission votes to either grant or deny
the Petition for Declaratory Statement, the docket should be closed. (Harper)
Staff Analysis:
Whether the Commission grants or denies IGS Solar’s
Petition, a final order will be issued. Upon issuance of the final order, the
docket should be closed.
