Case Background
On January 7,
2022, Florida Power & Light Company (FPL) filed a petition for a temporary
waiver of Rule 25-6.078(3), Florida Administrative Code (F.A.C.). FPL’s
requested waiver would allow deferred filing of certain information related to
installation of underground facilities in new subdivisions due to be filed by
April 1, 2022.
On February 17,
2022, the Commission issued a Notice of Proposed Agency Action, Order Granting
Petition for Temporary Rule Waiver (PAA Order) that would become final upon
issuance of a Consummating Order unless, within 21 days of issuance of the PAA
Order, a person whose interests would be substantially affected filed a petition
for a formal proceeding in conformity with the requirements of Rule 28-106.201,
F.A.C.
In its PAA Order,
the Commission granted FPL’s Petition for a Temporary Waiver of Rule 25-6.078(3),
F.A.C., to allow FPL to defer filing its written policy, along with supporting
data and analyses, for installation of underground facilities in new
subdivisions until April 1, 2023, effectively resetting FPL’s three-year filing
cycle such that its next filing would be due by April 1, 2026, instead of by
April 1, 2025. The
Commission found that granting the temporary waiver would serve to achieve the
purpose of the underlying statutes and determined that “strict application of
Rule 25-6.078(3), F.A.C., would create a substantial hardship for FPL based on
the expenditure of resources needed to determine the supporting underlying
costs for a time period prior to the consolidation of FPL and Gulf for cost and
ratemaking purposes.” Additionally,
because FPL would still be required to file Form PSC 1031 (08/20) to report its cost differential on
underground facilities by October 15, 2022, the Commission found that “there
should be no adverse impacts to FPL’s customers by granting the request[ed]”
waiver.
During the
21-day protest period that expired on March 10, 2022, the Commission received
103 Letters of Protest (Protest Petitions) purporting to challenge the PAA
Order and requesting a formal hearing pursuant to Rule 28-106.201, F.A.C.
On March 11,
2022, FPL filed a Motion to Dismiss Petitions (FPL Motion to Dismiss),
requesting that the Commission dismiss all 103 Protest Petitions. No responses were filed to FPL’s motion,
and the deadline for filing a response has passed.
This
recommendation addresses whether FPL’s Motion to Dismiss should be
granted. The Commission has jurisdiction
over this matter pursuant to Sections 366.04 and 120.542, Florida Statutes
(F.S.).
Discussion
of Issues
Issue 1:
Should the Commission grant FPL’s Motion to Dismiss?
Recommendation:
Yes. The
Commission should grant FPL’s Motion and dismiss the Protest Petitions with
prejudice. (Rubottom, DuVal)
Staff Analysis:
The Protest Petitions
Each of the 103 Protest Petitions received by the Commission
were entitled “Letter of Protest” and consisted of three paragraphs requesting
an evidentiary hearing and a denial of FPL’s petition for rule waiver, and each
Protest Petition included one additional paragraph in which the filer could
provide a “personal example of undue and substantial hardship.”
The first three paragraphs, identical in each letter,
allege that FPL’s requested base rate increase in Docket No. 20210015-EI was
approved in part based on proposed tariffs that included an updated written
policy regarding the installation of underground facilities in new subdivisions
but that “the data and analyses for [the tariffs]” were omitted from the
filing. The letters argue that because “the
supporting data and analyses were not included” in the FPL Rate Case, “yet
rates were changed that enriched the public utility and caused undue and
substantial financial hardship on the people,” FPL’s Petition for Temporary
Waiver of Rule 25-6.078(3), F.A.C., should be denied.
The fourth paragraph of each letter provides blank lines
for individual petitioners to relate a personal example of undue and
substantial hardship. Most petitioners
provide some information in paragraph four, all of whom complain of the
increased rates and other difficulties resulting from the FPL Rate Case and
request in various ways that the Commission review its decision in that case or
otherwise reduce rates.
FPL’s Motion to Dismiss
FPL makes three arguments in support of its Motion to
Dismiss.
First, FPL argues that petitioners lack standing to
challenge the Commission’s PAA Order.
Specifically, FPL cites Rule 28-106.201(2)(b), F.A.C., that requires a
petition for an evidentiary hearing to include “an explanation of how the
petitioner’s substantial interests will be affected by the agency determination.” Additionally, FPL cites the two-prong test
for standing, originating in Agrico
Chemical Company v. Department of Environmental Regulation, and
argues that the petitioners’ protests do not raise any substantial interests
relating to the Commission’s PAA Order granting FPL a temporary rule
waiver. FPL states that, instead, the
substantial interests identified in the Protest Petitions relate to the rate
increase approved by the Commission in Docket No. 20210015-EI and the petitioners’
interests as customers of FPL affected by the increased rates. FPL argues that the Protest Petitions fail to
meet Florida’s two-prong test for standing and should therefore be dismissed
because the petitioners’ interests are “wholly outside the scope of the
Commission’s” PAA Order.
Second, FPL argues that the Protest Petitions are an
improper collateral attack on the Commission’s order in Docket No. 20210015-EI,
in which the Commission approved a stipulation and settlement agreement
granting FPL a base rate increase. FPL points out that paragraphs 1-3 of the Protest
Petitions focus on actions that occurred in the 2021 ratemaking docket. However, because appeals to the Commission’s
order in that docket were filed with the Florida Supreme Court, FPL argues that
jurisdiction to settle complaints of the electric rates approved in that
ratemaking case properly resides with the Florida Supreme Court, not with the
Commission.
Third, FPL argues that the Protest Petitions fail to
comply with the pleading requirements of Rule 28-106.201, F.A.C. Specifically, FPL asserts the following
deficiencies related to Rule 28-106.201(2), F.A.C.:
·
Failure “to properly state how [petitioners’]
substantial interests will be affected” by the PAA Order as required by subsection
(b);
·
Failure “to provide a statement of all disputed
issues of material fact or if there are none” as required by subsection (d);
·
Failure “to provide a concise statement of the
ultimate facts alleged” and to “state which specific facts warrant reversal or
modification” of the PAA Order as required by subsection (e); and
·
Failure to “state the specific rules or statutes
that they contend require the reversal or modification” of the PAA Order and to
“provide an explanation of how the alleged facts relate to a specific rule or
statute,” as required by subsection (f).
Standard of Review for Motion to Dismiss
The Commission evaluates a motion to dismiss under the
legal standard of whether the facts alleged in a petition are sufficient to
state a cause of action, taking all material factual allegations from the
petition as true and not looking beyond the four corners of the petition. A petition should be dismissed with prejudice
where, after resolving every reasonable inference in favor of the petitioner,
it “conclusively appears that there is no possible way to amend the complaint
to state a cause of action.”
Discussion
Where a petitioner requests an evidentiary hearing,
Section 120.569(2)(c), F.S., provides, in part, that the Commission shall
dismiss a petition that fails to substantially comply with the procedural
requirements in the uniform rules of Chapter 28, F.A.C. Under Section 120.569(2)(c), F.S., the
dismissal of a petition should, at least once, be without prejudice to the
petitioner to allow the filing of a timely amended petition curing the defect,
unless it conclusively appears from the face of the petition that the defect
cannot be cured.
Sufficiency of the Protest Petitions: Failure to State a Cause of Action, and the Technical
Pleading Standard of Rule 28-106.201, F.A.C.
Each petition for a formal hearing must conform to the
pleading requirements of Rule 28-106.201, F.A.C. Rule 28-106.201(2), F.A.C., requires that all
petitions requesting an evidentiary hearing and asserting the existence of a
disputed issue of material fact shall contain:
(a)
The name and address of each agency affected and each agency’s
file or identification number, if known;
(b)
The name, address, any e-mail address, any facsimile
number, and telephone number of the petitioner, if the petitioner is not
represented by an attorney or a qualified representative; the name, address,
and telephone number of the petitioner’s representative, if any, which shall be
the address for service purposes during the course of the proceeding; and an
explanation of how the petitioner’s substantial interests will be affected by
the agency determination;
(c)
A statement of when and how the petitioner received
notice of the agency decision;
(d)
A statement of all disputed issues of material
fact. If there are none, the petition
must so indicate;
(e)
A concise statement of the ultimate facts alleged,
including the specific facts the petitioner contends warrant reversal or
modification of the agency’s proposed action;
(f)
A statement of the specific rules or statutes the
petitioner contends require reversal or modification of the agency’s proposed
action, including an explanation of how the alleged facts relate to the
specific rules or statutes; and
(g)
A statement of the relief sought by the petitioner,
stating precisely the action petitioner wishes the agency to take with respect
to the agency’s proposed action.
Specifically, staff recommends that the Protest Petitions
lack information required in subsections (b), (c), (d), (e), and (f) of that
rule, warranting dismissal. Furthermore,
in staff’s opinion, it appears conclusively on the face of the Protest Petitions
that the following defects cannot be cured and thus warrant dismissal of the
petitions with prejudice:
·
Subsection (b) - Because petitioners fail to
explain how their substantial interests will be affected by the PAA Order and
FPL’s deferred filing of the information required by Rule 25-6.078(3), F.A.C.,
staff is unable to identify any information in the Protest Petitions sufficient
to reasonably infer a causal connection between petitioners’ interests and the
Commission’s proposed action in this docket; and
·
Subsection (f) - Because petitioners fail to
state the specific rules or statutes the petitioners contend require reversal
or modification of the PAA Order, staff is unable to identify any relationship
between the facts alleged and any rules or statutes that could warrant such
reversal or modification in this case.
Petitioners have failed to state a cause of action for
which relief can be granted in the present docket. As discussed above, the nature of the present
docket is whether to grant FPL’s requested waiver of Rule 25-6.078(3),
F.A.C. To promote the interest of
fairness, the Commission has previously held pro se litigants such as the
petitioners to a relaxed pleading standard. However, the Protest Petitions allege no
material facts related to the Commission’s PAA Order granting the waiver and
thus fail to state a cause of action for which relief can be granted. Because “it conclusively appears from the
face of the petition that the defect[s] cannot be cured,” staff recommends that
the Commission dismiss the Protest Petitions with prejudice pursuant to Section
120.569(2)(c), F.S.
Factual Allegations Related to FPL Rate Case are
Outside the Scope of this Docket
Additionally, based on staff’s review of the filings, it
appears that petitioners are attempting to reargue facts of the 2021 FPL Rate Case
that are not material to the present docket.
Therefore, staff recommends that the Protest Petitions should also be
dismissed because the petitioners’ arguments related to the FPL Rate Case are
outside the scope of this docket.
Conclusion
For the reasons discussed above, staff recommends that the
Commission grant FPL’s Motion and dismiss the Protest Petitions with prejudice.
Issue 2:
Should this docket be closed?
Recommendation:
Yes. If the
Commission accepts staff’s recommendation on Issue 1 and dismisses the Protest
Petitions with prejudice, then the Commission should issue a Consummating Order
finalizing the PAA Order, and the docket should be closed.
Staff Analysis:
No other outstanding protests of the Commission’s
PAA Order remain to be resolved in this docket.
Therefore, if the Commission grants FPL’s Motion to Dismiss and
dismisses the Protest Petitions with prejudice pursuant to Section
120.569(2)(c), F.S., the Commission should issue a Consummating Order and close
the docket.
