Case Background
On
April 2, 2024, Tampa Electric Company (TECO or Utility) filed its Petition for
Rate Increase, minimum filing requirements (MFRs), and testimony. TECO provides
service to approximately 844 thousand customers in a 2,000 square mile service
territory in Hillsborough and portions of Polk, Pasco, and Pinellas counties,
Florida. In compliance with Section 366.06(3), Florida Statutes (F.S.), an
administrative hearing has been scheduled for these matters for August 26–30,
2024.
The Office of Public Counsel’s (OPC) intervention was
acknowledged by Order No.
PSC-2024-0048-PCO-EI, issued February 26, 2024. On April 23, 2024,
intervention in this proceeding was granted to Federal Executive Agencies
(FEA); Sierra Club; Florida Rising, Inc.
(Florida Rising); League of United Latin American Citizens of Florida (LULAC);
Florida Retail Federation (FRF); and Florida Industrial Power Users Group
(FIPUG). Petitions for Intervention are pending for Americans for Affordable
Clean Energy, Inc.; Circle K Stores, Inc.; RaceTrac Inc.; and Wawa, Inc. as of
the date of filing of this recommendation.
On March 8, 2024, OPC filed a
Motion for Expedited Joint Docket Scheduling Conference, together with an April
3, 2024 supplement to that motion, by which OPC requested a conference “to
consider fair and equitable key activities and hearing dates, consistent with
due process.” TECO responded in opposition on April 4, 2024, stating that it
did not support OPC’s proposed schedule. OPC’s request for a scheduling
conference was denied as its motion set forth in detail OPC’s arguments and
proposed controlling dates. Having considered the parties’ proposals, the Order
Establishing Procedure (OEP) No. PSC-2024-0096-PCO-EI, issued April 16,
2024, established controlling dates and
procedures for this proceeding, including for the filing of prefiled testimony
and exhibits, conducting discovery, and other prehearing and hearing
activities. Included among these events was the requirement that, in advance of
the hearing, parties provide electronic copies of all exhibits they intend to
offer into evidence at the hearing. Finally, the OEP scheduled these matters
for an administrative hearing for August 26–30, 2024.
On April 22, 2024, OPC timely
filed a Motion for Reconsideration or, in the Alternative, Motion for
Continuance (OPC Motion), concurrently with a request for oral argument on its
Motion. OPC’s Motion was filed with respect to this docket as well as Docket
No. 20240025-EI, In re: Petition for rate
increase by Duke Energy Florida, LLC. As these dockets are not
consolidated, a separate recommendation will be filed with respect to the Duke Energy
Florida, LLC (DEF) rate case, in Docket No. 20240025-EI.
In its Motion, OPC argues that
the hearing schedule established by the OEP does not allow sufficient time for
the intervenors to prepare testimony and that scheduling the DEF and TECO
hearings within three weeks of each other unfairly prejudices OPC’s ability to
represent the customers of DEF and TECO. OPC further contends that the
utilities are not entitled to have rates go into effect on January 1, 2025, and
the certainty that OPC does not have enough time to prepare its case for the
TECO and DEF hearings outweighs the possibility that the statutory timeline may
need to be delayed.
Joinders to OPC’s Motion were
filed by Florida Rising (April 22), LULAC (April 22), Sierra Club (April 24),
and FRF (April 29), contending that the time afforded for the intervenors to
conduct discovery and prepare their case is unfairly curtailed, especially
given the magnitude of the requested increase and the complexity of the issues
presented.
On April 29, 2024, TECO filed its
Response to OPC’s Motion and OPC’s request for oral argument. TECO contends
that OPC has not identified any new information that would justify
reconsideration of the OEP; therefore, OPC’s Motion should be denied. TECO also
contends that OPC’s concerns about the proposed test years in Docket No.
20240025-EI should not form a basis for adjusting the schedule in this docket,
and that OPC improperly minimizes the importance of the legislative deadline
found in Section 366.06(3), F.S.
This recommendation addresses OPC’s Request for Oral
Argument and Motion for Reconsideration, and the joinders and Response thereto.
The Commission has jurisdiction over this matter pursuant to Chapter 366, F.S.,
including Section 366.06, F.S.
Discussion
of Issues
Issue 1:
Should OPC’s Request for Oral Argument on its Motion
for Reconsideration of Order No. PSC-2024-0096-PCO-EI be granted?
Recommendation:
No. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and rule on the Motion. However, if
the Commission wants to exercise its discretion to hear oral argument, staff
recommends that 5 minutes per side is sufficient. (Sparks, Marquez)
Staff Analysis:
Law
Rule 25-22.0022(1), Florida Administrative Code (F.A.C.),
allows a party to request oral argument before the Commission for any
dispositive motion (such as motions for reconsideration) by filing a separate
written pleading filed concurrently with the motion on which argument is
requested, and stating with particularity why oral argument would aid the
Commission. Granting or denying oral argument is within the sole discretion of the
Commission under Rule 25-22.0022(3), F.A.C.
OPC’s Position
OPC requests the opportunity to provide 15 minutes of oral
argument on the Motion to further elaborate on its arguments and to aid the
Commissioners in understanding and evaluating the issues it raises as well as
answer any questions.
TECO’s Position
In its Response, TECO argues that oral argument is not
necessary to support the Motion filed by OPC and it should therefore be denied.
Conclusion
Granting or denying oral argument is within the sole
discretion of the Commission. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and decide OPC’s Motion. However,
if the Commission wants to exercise its discretion to hear oral argument, staff
recommends 5 minutes per side is sufficient.
Issue 2:
Should Reconsideration of Order No. PSC-2024-0096-PCO-EI
or a continuance of this proceeding be granted?
Recommendation:
No. Reconsideration should be denied because the
request for reconsideration fails to raise a point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering their decision. A
continuance should not be granted as OPC has failed to provide adequate grounds
for doing so, in contravention of the statutory times frames established by
Section 366.06(3), F.S. (Sparks, Marquez)
Staff Analysis:
Law
The appropriate standard of review for reconsideration of
a Commission order is whether the motion identifies a point of fact or law that
the Commission overlooked or failed to consider in rendering the order under
review. See Stewart Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315
(Fla. 1974); Diamond Cab Co. v. King, 146 So. 2d 889 (Fla. 1962); and Pingree
v. Quaintance, 394 So. 2d 162 (Fla. 1st DCA 1981). It is not appropriate to
reargue matters that have already been considered. Sherwood v. State,
111 So. 2d 96 (Fla. 3d DCA 1959) (citing State ex. rel. Jaytex Realty Co. v.
Green, 105 So. 2d 817 (Fla. 1st DCA 1958)). Furthermore, a motion for reconsideration
should not be granted “based upon an arbitrary feeling that a mistake may have been
made, but should be based upon specific factual matters set forth in the record
and susceptible to review.” Stewart Bonded Warehouse, Inc., 294 So. 2d at 317.
OPC’s Motion for Reconsideration
In its Motion, OPC acknowledges that the standard of
review on a motion for reconsideration is whether the motion identifies a point
of fact or law that the Commission either overlooked or failed to consider.
However, OPC argues that a de novo
standard of review should apply in this case because the underlying order is a
procedural order that has not been issued by the full Commission or been the
subject of a hearing.
With respect to the merits of its Motion, OPC requests the
Commission to reconsider the hearing schedules for six reasons: (1) intervenors
have insufficient time to prepare testimony; (2) the utilities could have easily
avoided this scheduling “disaster” and are not entitled to new rates by January
1, 2025; (3) the current ratemaking framework cannot fully accommodate analysis
of DEF’s three proposed test years simultaneously and then contemporaneously
with the TECO rate case docket; (4) Commission staff does not have sufficient
time to conduct their standard audit; (5) the certainty that OPC does not have
enough time to prepare their cases outweighs the possibility that the timeline
may need to be delayed; and (6) asymmetrical advance knowledge of the hearing
dates created additional harm to intervenors. OPC also contends that it is
burdensome and a violation of due process to require the parties to provide, in
advance of the hearing, electronic copies of all exhibits they plan to offer
into evidence at the hearing.
Joinders by Florida Rising, LULAC, Sierra Club, and FRF
On April 22, 2024, LULAC filed a Notice of Joinder in
Citizens’ Motion. LULAC noted that, in addition to the arguments put forth by
OPC, LULAC had to wait for intervention to be granted before it could file
enforceable discovery.
On April 24, 2024, Sierra Club filed a Notice of Joinder
in Citizens’ Motion. Sierra Club argues that the current hearing schedule
prejudices its ability for a fair hearing and joins OPC’s Motion requesting
reconsideration of the hearing schedule.
On April 29, 2024, FRF filed a Notice of Joinder in
Citizens’ Motion and argues it has a substantial interest in having the
Commission grant the relief requested by the Motion.
No other parties provided comment in support of OPC’s
Motion.
TECO’s Response
On April 29, 2024, TECO filed a
Response to OPC’s Motion. TECO argues OPC has not identified a mistake of law
or fact that would justify reconsideration of the hearing schedule. TECO
contends that OPC’s concerns about
Docket No. 20240025-EI should not be a basis for adjusting the schedule in this
docket, and that OPC improperly minimizes the importance of the legislative
deadline found in Section 366.06(3), F.S. TECO notes that the schedule in the
OEP appears crafted to avoid the operation of the statutory deadline in this
case, and that it has worked in good faith with all parties to facilitate
discovery, even prior to the filing of its Petition and to the granting of
intervenor status to certain parties. TECO also argues that OPC’s motion
improperly attempts to turn procedural conversations with staff about the
possible timing of a hearing into something significant.
Analysis
Motion for Reconsideration
OPC contends that
the Commission should review its Motion on a de novo basis rather than
“the ordinary standard for reconsideration.” OPC contends a mistake of fact or
law standard does not fit this scenario because the matters for which OPC seeks
review have either not been previously considered by the majority of the
Commission, or have not been the subject of a hearing. However, the setting of
a procedural schedule for a hearing-track docket is a function of the
Prehearing Officer’s duties, not those of the Commission as an agency, nor are
such procedural matters appropriate for an evidentiary hearing. Further, the
Commission has held that a mistake of fact or law standard applies to
reconsideration by the Commission of a Prehearing Officer’s order.
The Prehearing Officer is the
procedural administrator of a hearing-track case. They rule on motions and
procedural matters and conduct prehearing conferences, prior to referral of
such cases to the Commission for final decision. Pursuant to Rule 28-106.211, F.A.C.,
the Prehearing Officer may issue any orders necessary to effectuate discovery,
to prevent delay, and to promote the just, speedy, and inexpensive
determination of all aspects of the case, including bifurcating the proceeding.
The Prehearing Officer has wide discretion in balancing the interests of
parties in the furtherance of the orderly administration of justice.
The schedule approved by a Prehearing Officer is controlled in part by the
selection of hearing dates by the Chairman, which is in turn based upon the
availability of the Commission’s calendar and the existence of any applicable
statutory deadlines.
The statutory deadlines in this docket are established
under Section 366.06(3), F.S., which requires the Commission to take action on TECO’s
proposed final rates within eight months. If the Commission does not act by the
end of this eight month period, pursuant to Section 366.06(3), F.S., TECO is
entitled to place its proposed rates into effect, subject to refund. The
statute further provides that the Commission must take final action in the
docket and enter its final order within 12 months of the commencement date for
final agency action. The official filing date for this proceeding is April 2,
2024, pursuant to Section 366.06(3), F.S. Therefore, the eight month period
expires on December 2, 2024. Before the Commission can take a final vote on TECO’s
proposed rates, there are a number of post-hearing activities that must take
place: post-hearing briefs are filed by the parties, and two post-hearing
recommendations and two post-hearing votes take place – one on the revenues,
and one on the final rates. The OEP in this docket balances the needs of both
pre-hearing and post-hearing process, for the parties, staff, and
Commissioners, consistent with the deadlines under Section 366.06(3), F.S.
Adherence to the eight month clock is a consistent and appropriate Commission
practice. The schedule in this docket is driven by when the Utility elects to
file its case, which is not a matter susceptible to the Commission’s control,
and the requirements of the Commission’s authorizing statutes.
As to requiring the provision of exhibits in advance of
the hearing, Rule 28-106.209, F.A.C., provides that any time after a matter has
been filed with an agency, the presiding officer can direct the parties to
confer for the purpose of examining documents and other exhibits. The purpose
of discovery is to eliminate the element of surprise, encourage settlement, and
to assist in arriving at the truth.
The exchange of exhibits in advance of hearing is a common feature in
proceedings before the Division of Administrative Hearings, and was used in a
number of virtual hearings before the Commission during the pandemic. The
requirement that parties and staff list and exchange all exhibits in advance of
the hearing promotes due process, transparency, and judicial economy.
Finally, much of OPC’s argument
on reconsideration repeats matters raised in its Motion for Expedited Joint
Docket Scheduling Conference, which the Prehearing Officer considered in
setting the hearing schedule. It is not appropriate to reargue matters on
reconsideration that have already been considered. OPC has not clearly
identified any specific mistakes of fact or law the Prehearing Officer made in
issuing the OEP. Without a specific mistake of fact or law, a motion for
reconsideration must be denied, even if the reviewing body would have reached a
different decision. Based on
the above, OPC’s Motion for Reconsideration should be denied.
Alternative Request for Continuance
In the alternative, OPC moved the Commission to continue
the final hearings scheduled in the DEF and TECO dockets and to adjust the
major activity dates correspondingly. OPC argued it has met the burden
established by Rule 28-106.210, F.A.C., which governs motions for continuance
and grants the presiding officer the authority to continue a hearing for good
cause shown. Generally, hearing officers enjoy broad discretion when ruling on
motions to continue.
Section 366.06(3), F.S., establishes an eight month time period during which
the Commission can withhold its consent to the operation of rates proposed by a
utility and after which the rates take effect subject to refund. The dates
established by the OEP are designed to allow the parties and Commission staff
the maximum time to prepare for and conduct the final hearings in these matters
within that statutory framework. Any delay in the established schedule
increases the likelihood that the proposed rates will go into effect subject to
refund and therefore the Motion for Continuance should be denied and the
hearing and major activity dates established by the OEP should remain in place.
Conclusion
For the reasons discussed above, staff recommends that
OPC’s Motion for Reconsideration and Alternative Request for Continuance be
denied.
Issue 3:
Should this docket be closed?
Recommendation:
This docket should remain open pending the
Commission’s final resolution of TECO’s requested permanent base rate increase.
(Sparks, Marquez)
Staff Analysis:
This docket should remain open pending the
Commission’s final resolution of TECO’s requested permanent base rate increase.
