Case Background
On
April 22, 2026, Duke Energy Florida, LLC (DEF or Utility) filed a petition for
a limited proceeding seeking approval of a new Large Load Customer Policy
(LLCP), a Large Load Customer Agreement (LLCA), and revised Contribution in Aid
of Construction (CIAC) tariffs. DEF states that this filing complies with newly
passed state legislation, Senate Bill
484 (SB 484). The Governor signed SB 484 into law on May 7, 2026, which takes
effect on July 1, 2026 (Chapter No. 2026-65, Laws of Florida).
The
LLCP and associated LLCA establish a minimum contract term, minimum monthly
bill provisions, security requirements, and early termination provisions.
Customers subject to the LLCP must also pay a non-refundable system impact fee.
Finally, the LLCP contains a CIAC provision requiring customers to pay 100
percent of the estimated costs to extend service in advance.
Pursuant
to the proposed LLCP, potential large load customers would take service under
DEF’s existing GSD-1 or GSDT-1 rate schedules until a new rate class is
established as anticipated in DEF’s next rate case filing. In this filing, a
large load customer is defined as a customer with a Peak Contract Demand
forecast to be greater than or equal to a Monthly Maximum Demand of 50
Megawatts (MW) at a single location. Customers meeting this criteria would be
subject to the LLCP and would need to execute the LLCA. Customers already existing on the Utility’s system as of December 31, 2025, that meet the
demand requirements would not be subject to these additional requirements.
The Office of
Public Counsel’s (OPC) intervention in this docket was acknowledged by Order
No. PSC-2026-0144-PCO-EI, issued May 8, 2026. Florida Rising, Inc. (FR), PCS Phosphate – White Springs (PCS
Phosphate), and the Florida Industrial Power Users
Group were granted intervention in this docket subject
to proof of standing or stipulations that there are sufficient facts to support
all elements for standing.
On May 26, 2026,
OPC and FR (collectively, Movants) filed a Joint Motion to Dismiss (Joint
Motion) requesting the Florida Public Service Commission (Commission) dismiss DEF’s
petition for failing to meet the requirements of SB 484. On June 2, 2026, DEF
and PCS Phosphate separately filed responses to the Joint Motion requesting the
Commission deny the Joint Motion and let the case proceed to an evidentiary
hearing. No request for oral argument was filed concurrently with the Joint
Motion under Rule 25-22.0022(7)(a), F.A.C.; however, participation on this item
is within the Commission’s discretion.
This is staff’s
recommendation on the Joint Motion. The Commission has jurisdiction over this
matter pursuant to Sections 366.04, 366.05, and 366.06, Florida Statutes
(F.S.).
Discussion
of Issues
Issue 1:
Should the Commission grant the Office of Public
Counsel and Florida Rising, Inc.’s Joint Motion to Dismiss?
Recommendation:
No. Staff recommends that the Commission deny the
Joint Motion to Dismiss because there are material questions of fact to be
resolved at an evidentiary hearing. (Thompson, Farooqi)
Staff Analysis:
Standard of Review
A motion to dismiss raises as a question of law the
sufficiency of the facts alleged to state a cause of action. In
order to sustain a motion to dismiss, the moving party must show that,
accepting all allegations as true, the petition still fails to state a cause of
action for which relief may be granted.
The moving party must specify the grounds for the motion to dismiss, and all
material allegations must be construed against the moving party in determining
if the petitioner has stated the necessary allegations. A
sufficiency determination should be confined to the petition and documents
incorporated therein, and the grounds asserted in the motion to dismiss.
To evaluate a motion to dismiss, all allegations in the
petition must be viewed as true and in the light most favorable to the
petitioner in order to determine whether there is a cause of action upon which
relief may be granted.
The “[d]ismissal of a petition shall, at least once, be without prejudice to
petitioner's filing a timely amended petition curing the defect, unless it
conclusively appears from the face of the petition that the defect cannot be
cured.”
Section 120.57(1)(h), F.S., provides that a summary final
order shall be granted if it is determined from the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits,
if any, that (1) no genuine issue as to any material fact exists, and (2) the
moving party is entitled as a matter of law to the entry of a final summary
order. The purpose of a summary final order is to avoid the expense and delay
of trial when no dispute exists concerning the material facts.
Parties’ Positions
In the Joint Motion, the Movants argue that DEF’s petition
facially violates Florida law because the tariff does not contain a specific
rate, the rate under which large load customers will take service does not
comply with SB 484, and the specification of “firm” load is an impermissible
narrowing of the statutory language.
In its response in opposition, DEF argues that the Joint
Motion presupposes interpretations of SB 484 that have yet to be applied. DEF
notes that tariffs are more broad than a simple rate schedule, claimed that the
rate under which large load customers will take service will not be shifted to
the general body of ratepayers, and argues that the statute specifically
recognizes that the company retains “the right to curtail or interrupt
service. . . .”
PCS Phosphate also filed a written response opposing the
Joint Motion and argue that whether a utility’s petition meets the requirements
of a statute is a mixed question of fact and law appropriate for hearing.
Staff Analysis
This case is the first time the Commission will be
interpreting the new Chapter 2026-65, Laws of Florida, which the Governor
approved on May 7, 2026. The Joint Motion seeks to assume an interpretation of
the new law without any opportunity for the parties to solicit facts, argument,
and evidence. Staff suggests that there are mixed questions of facts and law
that have been raised and, thus, to determine whether or not the criteria set
forth in the statute is met, the Commission would benefit from allowing the
case to go forward with a hearing. For this reason, staff recommends denying
the Joint Motion. The individual arguments from the Joint Motion are discussed
more fully below.
Non-Rate Tariff
The Movants argue that SB 484
requires, “[a]t barest minimum, any tariff must actually contain the specific
numeric rate or rates at which customers taking service under the tariff will
be charged for electric service.” DEF argues that the statute requires a
“minimum tariff and service requirements.” The Commission has previously
approved tariffs without a specific rate. Staff
suggests that the parties could provide additional evidence and argument at a
full hearing that would assist the Commission’s resolution of this argument. Thus,
staff does not recommend dismissal on this ground.
GSD-1/GSDT-1
Rate
The
Movants argue that by virtue of large load customers being on the GSD-1 or
GSDT-1 rate, DEF’s petition facially violates “the requirement that they
‘reasonably ensure that each large load customer bears its own full cost of
service and that such cost is not shifted to the general body of ratepayers.’”
DEF argues that because rates for customers have already been set, there is no
risk of costs being shifted to the general body. Here, whether each large load
customer will bear its own full cost of service under the GSD-1 or GSDT-1 rate is
an evidentiary question. Thus, staff does not recommend dismissal on this
ground.
Load
Threshold
The
Movants argue that SB 484 imposes a requirement that all customers with an
anticipated monthly peak of 50 megawatts or more are subject to the statute,
but DEF’s proposed tariff falls short by only applying to customers with 50
megawatts or more of firm capacity. DEF argues that this is an
inaccurate interpretation of the statute, and that the proposed tariff complies
with the requirements to “not prevent or otherwise hinder the curtailment or
interruption” of service to a large load customer. DEF argues the Commission
can exercise its discretion in analyzing the operating characteristics of large
load customers requiring firm service and those that are interruptible or curtailable.
On this issue, staff suggests the parties provide additional argument and
evidence that could be introduced and provided to the Commission via the
hearing process. Consequently, staff recommends that this is not a valid ground
to dismiss the petition.
Conclusion
If, when accepting the allegations in the petition as true
there remains a genuine issue of material fact, a motion to dismiss should be
denied. Here, questions of material fact remain as to the issues raised in the
Joint Motion. Therefore, staff recommends that the Commission deny the Joint
Motion.
Issue 2:
Should this docket be closed?
Recommendation:
No. This docket should remain open pending the
Commission’s decision on DEF’s petition. (Thompson, Farooqi)
Staff Analysis:
No. This docket should
remain open pending the Commission’s decision on DEF’s petition.
