MARK SCHUMANN

Attorneys for the Florida Public Service Commission this week weighed in on Indian River Shores’ lawsuit against Vero Beach. The PSC is asking the Circuit Court to dismiss the Town’s complaint, arguing that the PSC, and not the courts, has the “sole and superior jurisdiction” over service territory agreements, such as the Commission orders giving Vero Beach the right and obligation to provide electric service within Town of Indian River Shores.

In its complaint, the Town’s attorneys assert that the soon-to-expire franchise agreement between the Shores and Vero Beach is superior to any authority the PSC may have to establish, maintain and enforce service territory assignments for the state’s electric utilities.

The PSC counters, “determination of service providers pursuant to territorial agreements is within the exclusive jurisdiction of the Commission.”

In its filing with the court, the PSC sited a 1976 bill of the Florida Legislature intended to provide for a coordinated state-wide electric grid. That legislation, known as the “Grid Bill,” reads, “The Commission shall further have jurisdiction over the planning, development and maintenance of a coordinated electric power grid throughout Florida to assure and adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities.”

In a 1989 case, Roemmele-Putney v. Reynolds, the court dismissed a complaint similar to the Shores’, and in doing so affirmed the Commissions “exclusive and superior jurisdiction and statutory power over all electric utilities and any territorial disputes…”

In asking the court to dismissed the Shores’ complaint, the Commission argues that its authority over the state-wide power grid would be “eviscerated” if territorial orders were subordinated to local franchise agreements.

Though the Shores does not now assess a franchise fee on Vero Electric’s billings to Town residents, franchise agreements are essentially a legal mechanize to allow for the assessment and collection of such fees.  Indian River County, as an example, tacks on six percent to all electric bills issued by Vero Electric and by Florida Power & Light to county resident.  (At the same time, though, the County Commission argues that Vero Beach has no right to earn a six percent profit on its electric service to county residents.)

In its case against Vero Beach, the Shores asserts that franchise agreements have another, larger purpose, namely to govern the length of time a utility provider, such as Vero Electric, may serve within the Town.

Not so, say the Commission’s lawyers.  They wrote, “Only the Commission may modify or terminate that right and obligation (to serve within Commission assigned territories). Any modification or termination of a territorial order must first be made by the Commission in order to carry out its statutory duties…,” adding, “The Town does not have the authority to pick a new service provider to replace Vero Beach when the Franchise Agreement expires.”

In addition to asking the court to dismiss the Shores’ complaint, the Commission also requested permission to submit an “amicus,” or friend-of-the-court brief setting out in more detail the Commission’s legal reasoning for why the Shore’s assertions are contrary to established Florida utility law.

To date, the Shores has spent nearly half a million dollars seeking to force Vero Beach to discontinue electric serviced to the Town.