MARK SCHUMANN

In a 112-page report including attachments and footnotes, Florida Public Service Commission staff today recommended the PSC deny Indian River County’s request for a declaratory statement addressing Vero Beach’s rights and responsibilities to serve its electric customers in the unincorporated areas of the County.

If the PSC follows the advice of its staff when it meets in Tallahassee Nov. 25, Indian River County will not get the answer it is looking for in its effort to force Vero Beach to discontinue service to out-of-city customers when the franchise agreement between the County and the City expires in 2016.

Underlying the franchise agreement between Vero Beach and the County are several PSC-approved service territory agreements dating back as far 1971. According to the PSC staff report, “The essential question posed by the Petition (Indian River County) is whether a non-charter county has the authority to designate an electric utility service provider, or provide that service itself, within the unincorporated territory of the county, notwithstanding the existence of a Florida Public Service Commission order approving a territorial agreement between a regulated public utility and a municipal electric utility for that same territory. The Commission does not have the authority to issue a legal advisory opinion or to announce general policy for far-reaching applicability in a declaratory statement proceeding.”

PSC staff also wrote, “The County’s allegation that it has sole authority upon expiration of the Franchise Agreement to terminate Vero Beach as the electric service provider and to designate by franchise agreement a successor electric utility service provider or to provide service itself, does not constitute a set of facts upon with to apply the law. Instead, this statement assumes a legal conclusion that the Territorial Orders are inapplicable or invalid as to Indian River County based on its authority to issue franchise agreements.”

In tandem with the County’s appeal to the PSC, the Town of Indian River Shores filed a circuit court case making essentially the same assertion, namely that PSC service territory agreements are subordinate to franchise agreements between municipalities and utility providers. If at its meeting next week the PSC declines the County’s request for a declaratory statement, both the County and the Shores will have to rest their hopes on a precedent-setting lawsuit some believe will take years to resolve.  The case could cost Vero Beach, the Shores and the County millions to litigate, and may well be decided by the Florida Supreme Court.

Every electric utility in Florida appealed to the PSC not to approve the Indian River County Commission’s effort to seek a green light to take from Vero Beach its out-of-city electric customers in 2017.

 PSC Staff Report