COMMENTARY

MARK SCHUMANN

Vero Beach’s outside counsel, Schef Wright, filed with the Florida Public Service Commission yesterday a response to the Indian River County Commission’s motion to oppose the City’s effort to seek clarification of what rights, if any, it has to serve some 20,000 out-of-city customers after the franchise agreement between the City and County expires in 2017.

Tampa Electric Company, the Florida Electric Cooperative Association, Duke Energy and the Florida Municipal Electric Association have all filed motions with the PSC urging the Commission to affirm the superiority of PSC-approved service territory agreements over franchise agreements.

“…the County (Indian River County) wrongfully supposes that the franchise agreement between the City (Vero Beach) and the County is the ‘sole legal authority’ for the City to use the County’s rights-of-way to provide electric service to the unincorporated portions of the County,” wrote Arthur J. Lacerte, Jr., Vice President and General Counsel for the Kissimmee Utility Authority. Lacerte wrote on behalf of the FMEA.

Lacerte continued, “It is the Commission, not a county or municipality, which possesses exclusive and superior jurisdiction over territorial matters and has the legislatively-mandated responsibility for the planning, development, and maintenance of a coordinated electric power grid throughout Florida.”

In a departure from the legalese common in PSC filings, Wright, in plane English, accused the County Commission’s outside counsel, Floyd Self, of misunderstanding the legal issues, mischaracterizing and misrepresenting facts and presenting a “specious and misleading” interpretation of the legal issues involved in Winter Park’s purchase of its electric system from Progress Energy.

The PSC is scheduled to respond the County’s petition February 3 and Vero Beach’s petition March 3.  If in response to either petition the PSC affirms its jurisdiction over service territory assignments, the ruling could have a bearing on the Town of Indian River Shores’ lawsuit against Vero Beach.

The following is an excerpt of the motion Wright filed yesterday with the PSC.

Substantively, the County’s arguments set forth in the County’s Response are defective,
legally flawed, illogical, internally inconsistent, and irrelevant for many reasons explained in the
City’s Response, including:

1 . A number of the County’s “factual” assertions are irrelevant, false, wrong, misplaced, or
incorrect; some are legal conclusions that the County wishes were facts.

2. The County either misunderstands or has misrepresented the City’s requests for the
Commission’s declarations and the City’s positions regarding many issues, including the
validity and effectiveness of the City-County Franchise Agreement.

3. The County misunderstands or mischaracterizes the bargained-for exchange embodied in
the City-County Franchise Agreement in its efforts to usurp the Commission’s statutory
role in determining what utilities serve in what service areas when there is a dispute
regarding such service.

4. As a result of its misunderstanding or mischaracterization of the bargained-for exchange
in the City-County Franchise Agreement and the legal effect of the existence of that
Agreement, the County has also misunderstood, mischaracterized, and misrepresented
what will happen when the City-County Franchise Agreement expires.

5. The County incorrectly claims to have powers that, as a matter of law, it simply does not
have under Florida Statutes, the Florida Constitution, or under the Franchise Agreement.

6. The County’s assertions regarding the PSC’s jurisdiction are irrelevant to the declaratory
statements requested by the City. Specifically, the City has not asked the PSC to
determine the County’s property rights; any legal issues regarding such property rights, to
the extent that they are to be determined by legal process, will be decided in the courts of
Florida.

7. The County’s characterizations of the holdings in the Winter Park case, and the
Commission’s actions and non-actions relative to the change-over of service from Florida
Power Corporation/Progress Energy Florida to Winter Park, are specious and misleading.