LEE COUNTY ELEC. CO-OP., INC. v. JacobsLEE COUNTY ELEC. CO-OP., INC. v. Jacobs
This case is before the Court on appeal from an order of the Florida Public Service Commission (PSC). We have jurisdiction. See
Lee County Electric Cooperative (LCEC) is a non-profit electric distribution cooperative organized under
LCEC purchases all of its power requirements from Seminole pursuant to a wholesale power contract between LCEC and Seminole, originally dated May 22, 1975, and supplemented and amended from time to time. LCEC must purchase all of its power requirements from Seminole during the 45-year term of the contract, which does not expire until 2020. The contract specifies the procedure for determining the rate the members pay Seminole for wholesale service. The rate schedule applies uniformly to all members. The contract provides that the board of trustees will review Seminole‘s rate schedule at least once a year. In the contract, LCEC agreed to be bound by the rate schedule established by the board. The contract specifically provides that the only regulatory review required is approval from the administrator of the federal Rural Utilities Service (formerly the Rural Electrification Administration).1
On December 8, 1998, LCEC filed its complaint with the PSC, asking the PSC to conduct a full investigation and evidentiary hearing on Seminole‘s new rate schedule. LCEC based its complaint on
Seminole moved to dismiss LCEC‘s complaint, claiming that the PSC is without jurisdiction to review Seminole‘s wholesale rate schedule. In response, LCEC claimed that the PSC‘s exercise of jurisdiction falls squarely within the language and intent of
The PSC met and considered the motion to dismiss twice. The first time the motion was denied by virtue of a two-two tie vote. Upon the request of the parties, the PSC later reconsidered the jurisdictional issue and this time a panel of commissioners voted two-to-one to dismiss LCEC‘s complaint. The majority held that the statutes do not “expressly indicate that this Commission has jurisdiction to prescribe a wholesale rate structure for a rural electric cooperative.” This appeal follows.
The issue in this case is whether
In 1974, the Legislature passed the Grid Bill, codified at
(2) In the exercise of its jurisdiction, the commission shall have power over electric utilities for the following purposes:
. . . .
(b) To prescribe a rate structure for all electric utilities.
(2) “Electric utility” means any municipal electric utility, investor-owned electric utility, or rural electric cooperative which owns, maintains, or operates an
electric generation, transmission, or distribution system within the state.
In its order, the PSC acknowledges that Seminole is an electric utility. However, the PSC notes that the term “rate structure” is not defined in
When I read this language, and I think I‘ve indicated this earlier, to me, rate structure—and I don‘t think rate structure is defined anywhere in the statute. But to me, rate structure means the structure of rates as they relate to different rate classes, and a classic example is residential, commercial, industrial, classifications of those types. And that rate structure connotes to me an offering by a utility that says these are the terms and conditions that we will provide service to you, and if you meet those terms and conditions, you will be provided the service on a nondiscriminatory basis, and it doesn‘t really apply to a situation where you have entities who have voluntarily entered into a negotiated contract. And if there are provisions within that contract which allow for the rates to change over time, I still don‘t think that meets the definition of a rate structure as I think it‘s contemplated.
For this reason, the PSC concluded that it did not have jurisdiction to prescribe a wholesale rate structure for a rural electric cooperative. To support this conclusion, the PSC contends that any reasonable doubt regarding its regulatory power compels the PSC to resolve that doubt against the exercise of jurisdiction. See City of Cape Coral v. GAC Utilities, 281 So.2d 493, 496 (Fla.1973). We agree.
Further, as the PSC emphasized in its order, Seminole‘s rate schedule was established by Seminole‘s board of trustees, pursuant to the terms of Seminole‘s contract with LCEC. LCEC voluntarily entered into this contract. We find, therefore, that any contention that LCEC has with Seminole‘s current rate schedule is more appropriately raised in an action filed in the circuit court.
Finally, we address LCEC‘s “regulatory gap” argument. All of the parties agree that under the current state of the law, the wholesale rate structures of rural electric cooperatives in Florida are essentially unregulated.3 As stated in LCEC‘s brief, there is no federal bar to a particular state‘s public service commission exercising jurisdiction over the wholesale rate structures of rural electric cooperatives. See Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm‘n 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983) (holding that the Rural Electrification Act does not preempt state rate regulation of rural electric cooperatives). Regardless of this view of federal law, it does not answer the question of whether the Legislature of this state intended for the rate schedules of cooperatives such as Seminole to be regulated by the PSC or whether these cooperatives were intended to be self-governing. Based on our review of the record, we find that they were intended to be self-governing.
Accordingly, we affirm the PSC‘s order determining that it does not have rate
It is so ordered.
HARDING, PARIENTE, and LEWIS, JJ., concur.
WELLS, C.J., concurs with an opinion.
ANSTEAD, J., dissents with an opinion, in which SHAW and QUINCE, JJ., concur.
WELLS, C.J., concurring.
I join the majority decision and would additionally note that the Public Service Commission (PSC) has not asserted jurisdiction over these cooperatives since this statute was adopted more than twenty-five years ago. Surely if the Legislature had intended that the PSC assert such jurisdiction, the Legislature would have amended the statute to expressly so state after several legislative sessions of the PSC not so doing. In fact, the Legislature has amended the statute during this period but did not amend it in that manner. Therefore, I think, we should not, after such a long period, hold that the PSC‘s interpretation of the statute was in error. If it is in error under these circumstances, the Legislature should amend the statute to expressly so state.
ANSTEAD, J., dissenting.
I must express my disagreement with the majority‘s decision limiting the regulatory jurisdiction of the Florida Public Service Commission.4 I would approve and adopt the thorough and scholarly dissenting opinion filed by Commissioner Jacobs in the proceedings before the Commission.5
After thoroughly analyzing all aspects of the issue, Commissioner Jacobs concluded:
The provisions of Chapter 366, Florida Statutes, given their plain and ordinary meaning, clearly convey jurisdiction upon this Commission to prescribe a wholesale rate structure for rural electric cooperatives, such as Seminole. Seminole has not demonstrated that the plain language of the statute inaccurately reflects the Legislature‘s intent or that application of the plain language leads to a ridiculous or unreasonable result. Further, by not exercising this jurisdiction in the past, this Commission has in no way forfeited its authority to do so now. Therefore, I believe that this Commission has jurisdiction over the subject matter of LCEC‘s complaint and petition. Further, I believe that the exercise of this jurisdiction is reasonable and appropriate in this case, especially in view of the clear absence of preemption at the Federal level.
Commissioner Jacobs’ analysis and conclusion are essentially predicated upon the undeniable fact that the Legislature has clearly chosen to regulate electric utilities in Florida by vesting comprehensive regulatory authority in the Public Service Commission.
It is because I find the Legislature‘s unambiguous decision to regulate to be controlling that I am compelled to respectfully disagree with the majority‘s decision denying the commission comprehensive regulatory authority over a significant segment of electric utilities operating in Florida. No one denies that the plain meaning
Under the majority‘s holding, we end up with only partial regulation of electric utilities in Florida. Now, if it could be demonstrated that partial regulation is what the Legislature intended, then so be it, since that would be the Legislature‘s call. However, in my view we have taken a statutory scheme mandating comprehensive regulation over electric utilities and effectively turned it on its head by excepting significant electric utilities activities from regulation. Hence, we end up with a partial scheme of regulation and a limited regulatory authority that may be seriously undermined by unregulated utilities activity that may affect the commission‘s overall responsibility to regulate, but is now outside the commission‘s reach. Surely, the consistency and stability of utility regulation in Florida will not be served by such a piecemeal scheme.
SHAW and QUINCE, JJ., concur.
APPENDIX A
DISSENT
COMMISSIONER JACOBS dissents, as set forth below:
I disagree with the majority‘s findings regarding our jurisdiction under
A. Plain Language of the Statute
In its complaint and petition, LCEC requests that we review Seminole‘s new rate schedule pursuant to the jurisdiction granted by
(2) In the exercise of its jurisdiction, the commission shall have the power over electric utilities for the following purposes:
* * *
(b) To prescribe a rate structure for all electric utilities.
(Emphasis added). This provision does not make a distinction between retail and wholesale rate structures or between utilities engaged in retail sales and utilities engaged in wholesale sales. It states that our rate structure jurisdiction extends to all electric utilities.
(3) “Electric utility” means any municipal electric utility, investor-owned electric utility, or rural electric cooperative
which owns, maintains, or operates an electric generation, transmission, or distribution system within the state.”
(Emphasis added). Seminole is a rural electric cooperative which owns, maintains, and operates generation and transmission facilities within the state. Seminole concedes it is an “electric utility” as defined in
When a statute is clear and unambiguous, courts will not look behind the statute‘s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). Instead, the statute‘s plain and ordinary meaning must be given effect unless it leads to an unreasonable or ridiculous result. Miami Beach, at 193. A departure from the plain language of a statute is permitted only when there are cogent reasons for believing that the language of the statute does not accurately reflect legislative intent. Holly, at 219. I find that application of the plain language of the statute does not lead to an unreasonable or ridiculous result. Further, I find there has been no demonstration that the language of the statute inaccurately reflects the legislative intent.
B. Legislative Intent
Seminole argues two points related to the legislative intent behind the statutory provisions at issue: (1) Commission jurisdiction over wholesale rate structures of rural electric cooperatives is inconsistent with the purpose of
1. Consistency with Purpose of Chapter 366
First, Seminole argues that Commission jurisdiction over Seminole‘s rate structure is inconsistent with the purpose of
In Carter, the court stated that “[t]he Florida Railroad and Public Utilities Commission was created for the purpose of protecting the general public from unreasonable and arbitrary charges that might be made by railroads and other transportation companies which may be classified as monopolies.” Id., at 806. While this may be an accurate general statement of this Commission‘s original purpose, it clearly does not provide an exhaustive list of this Commission‘s purposes in 2000, much less the present purposes of
An argument could be made that our rate structure jurisdiction was intended to provide us some limited measure of control over the rates charged by municipal electric utilities and rural electric cooperatives to protect captive retail customers from unreasonable charges. However, given the clear purpose of the Grid Bill—to assure an adequate and reliable source of energy for the state—it appears equally, if not more, likely that our rate structure jurisdiction was intended to ensure that rates were structured in a manner consistent with the goals of reliability and conservation. The allegations of LCEC‘s complaint and petition indicate that LCEC is concerned with Seminole‘s new rate structure at least in part because of its potential to harm LCEC‘s conservation efforts and to encourage development of uneconomic generation. This type of harm appears to clearly fall within the jurisdiction granted to this Commission through the broad language of the Grid Bill. The lack of a distinction between retail and wholesale rate structures is further evidence of the broad jurisdiction granted by the Grid Bill.
2. Consistency with Other Provisions of Chapter 366
Second, Seminole argues that Commission jurisdiction over Seminole‘s rate structure is inconsistent with
No other provision of this chapter shall apply in any manner, other than as specified in ss. 366.04, 366.05(7) and (8), 366.051, 366.055, 366.093, 366.095, 366.14, and 366.80 366.85, ... to the sale of electricity, manufactured gas, or natural gas at wholesale by any public utility to, and the purchase by, any municipality or cooperative under or pursuant to any contracts ... when such municipality or cooperative is engaged in the sale and distribution of electricity or manufactured or natural gas, or to the rates provided for in such contracts.
(Emphasis supplied.) Clearly, the limited exemption in
Second, as LCEC noted, it is a commonly accepted principle of statutory construction that the express exemption of one thing in a statute, and silence regarding another, implies an intent not to exempt the latter. PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988). Applying the principle to this case, the most reasonable interpretation of
In summary, Seminole has not demonstrated that the plain language of the statute inaccurately reflects the Legislature‘s intent or that application of the plain language leads to an unreasonable or ridiculous result. Instead, it appears that our jurisdiction over wholesale rate structures of rural electric cooperatives and municipal electric utilities is consistent with the purposes of the Grid Bill and with the provisions of
C. Commission‘s Past Inaction
As noted in the majority opinion, this Commission has not exercised jurisdiction over the wholesale rate structure of a rural electric cooperative or municipal electric utility at any time since the enactment of
Seminole contends that by our past inaction we have tacitly acknowledged that we lack such jurisdiction and cannot now abandon our “practical interpretation” of
I am persuaded by LCEC‘s analysis. As LCEC points out, agency inaction cannot deprive an agency of jurisdiction conferred. See, e.g., State ex rel. Triay v. Burr, 79 Fla. 290, 84 So. 61, 74 (Fla.1920); United States v. Morton Salt Co., 338 U.S. 632, 647, 70 S.Ct. 357, 94 L.Ed. 401 (1950); United States v. American Union Transport, 327 U.S. 437, 454, n. 18, 66 S.Ct. 644, 90 L.Ed. 772 (1946). In State ex rel. Triay v. Burr, the Florida Supreme Court spoke on this subject:
When a valid statute confers a power or imposes a duty upon designated officials, a failure to exercise the power or perform the duty does not affect the existence of the power or duty or curtail the right to require performance in a proper case.
Id., at 74. Further, while an agency‘s failure to exercise a power may be significant as a factor in evaluating whether that power was actually conferred, it alone does not extinguish that power or compel an inference that the agency has concluded it lacks jurisdiction. United States v. American Union Transport, at 454, n. 18, 66 S.Ct. 644. In this case, the jurisdiction granted by the plain language of
Even assuming that our past inaction does amount to an implicit determination on jurisdiction, this Commission is not precluded by its past inaction from exercising jurisdiction over Seminole‘s rate structure. In United States v. American Union Transport, the court stated:
An administrative agency is not ordinarily under an obligation immediately to test the limits of its jurisdiction. It may await an appropriate opportunity or clear need for doing so. It may also be mistaken as to the scope of its authority.
Id., at 454, n. 18, 66 S.Ct. 644. LCEC asserts that we may have misapprehended the scope of our authority when we failed to require Seminole to file its tariffs along with the distribution cooperatives in 1978. LCEC‘s argument is reasonable. In 1967, the Federal Power Commission, FERC‘s predecessor, disavowed jurisdiction over the wholesale sales of cooperatives, Dairy-land Power Cooperative, et al., 37 F.P.C. 12 (1967), but it was not until 1983 that the U.S. Supreme Court held in Arkansas Electric Cooperative Corp. v. Arkansas Public Service Commission, 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983), that state regulation of wholesale electric cooperatives was not preempted by federal law and may not constitute an unconstitutional burden on interstate commerce. In addition, there is no indication that this Commission has had a clear need yet to exercise jurisdiction in this area.
I am not persuaded by Seminole‘s contention that we cannot now abandon our “practical interpretation” of
Seminole points out that this Commission is a creature of statute and may exercise only those powers conferred expressly or impliedly by statute. Citing City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So.2d 493 (Fla.1973) and Radio Telephone Communications, Inc. v. Southeastern Telephone Company, 170 So.2d 577, 582 (Fla.1964), Seminole asserts that any reasonable doubt about the existence of this Commission‘s jurisdiction must be resolved against the exercise of such jurisdiction. Seminole contends that there is certainly reasonable doubt about the Legislature‘s intent to grant this Commission authority over the wholesale rate structures of municipal and cooperative electric utilities.
Based on the analysis set forth above, I find no reasonable doubt about the existence of the jurisdiction conferred upon this Commission in
E. Conclusion
The provisions of
F. Contract Not a Bar to Commission Jurisdiction
Finally, Seminole suggests that this Commission is precluded from asserting jurisdiction in this case by the Florida Supreme Court‘s decision in United Telephone Company v. Public Service Commission, 496 So.2d 116 (Fla.1986). Seminole states that the Court held that the provisions of
Seminole‘s interpretation of the Court‘s opinion is inaccurate. In United Telephone, the Court examined
As stated above, I find that the provisions of
For these reasons, I dissent from the majority‘s decision.
Notes
(2) In the exercise of its jurisdiction, the commission shall have power over rural electric cooperatives and municipal electric utilities for the following purposes:
. . . .
(b) To prescribe a rate structure for all electric utilities.