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2023 Florida Statutes (including 2023C)
Chapter 366
PUBLIC UTILITIES
PUBLIC UTILITIES
CHAPTER 366
PUBLIC UTILITIES
366.01 Legislative declaration.
366.015 Interagency liaison.
366.02 Definitions.
366.03 General duties of public utility.
366.031 Definitions; preference relating to cable television prohibited; penalties.
366.032 Preemption over utility service restrictions.
366.04 Jurisdiction of commission.
366.041 Rate fixing; adequacy of facilities as criterion.
366.05 Powers.
366.051 Cogeneration; small power production; commission jurisdiction.
366.055 Availability of, and payment for, energy reserves.
366.06 Rates; procedure for fixing and changing.
366.07 Rates; adjustment.
366.071 Interim rates; procedure.
366.072 Rate adjustment orders.
366.075 Experimental and transitional rates.
366.076 Limited proceedings; rules on subsequent adjustments.
366.08 Investigations, inspections; power of commission.
366.09 Incrimination at hearing of commission.
366.093 Public utility records; confidentiality.
366.095 Penalties.
366.10 Judicial review.
366.11 Certain exemptions.
366.125 Natural gas jurisdiction limits.
366.13 Taxes, not affected.
366.14 Regulatory assessment fees.
366.15 Medically essential electric public utility service.
366.80 Short title.
366.81 Legislative findings and intent.
366.82 Definition; goals; plans; programs; annual reports; energy audits.
366.825 Clean Air Act compliance; definitions; goals; plans.
366.8255 Environmental cost recovery.
366.8260 Storm-recovery financing.
366.83 Certain laws not applicable; saving clause.
366.91 Renewable energy.
366.92 Florida renewable energy policy.
366.93 Cost recovery for the siting, design, licensing, and construction of nuclear and integrated gasification combined cycle power plants.
366.94 Electric vehicle charging stations.
366.95 Financing for certain nuclear generating asset retirement or abandonment costs.
366.96 Storm protection plan cost recovery.
366.97 Redundant poles; transfer of ownership.
366.98 Public utility liability arising out of emergencies and disasters.
366.01 Legislative declaration.—The regulation of public utilities as defined herein is declared to be in the public interest and this chapter shall be deemed to be an exercise of the police power of the state for the protection of the public welfare and all the provisions hereof shall be liberally construed for the accomplishment of that purpose.
History.—s. 1, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.015 Interagency liaison.—The commission is directed to provide for, and assume primary responsibility for, establishing and maintaining continuous liaison with all other appropriate state and federal agencies whose policy decisions and rulemaking authority affect those utilities over which the commission has primary regulatory jurisdiction. This liaison shall be conducted at the policymaking levels as well as the department, division, or bureau levels. Active participation in other agencies’ public hearings is encouraged to transmit the commission’s policy positions and information requirements, in order to provide for more efficient regulation.
History.—s. 6, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.02 Definitions.—As used in this chapter:
(1) “Attaching entity” means a person that is a local exchange carrier, a public utility, a communications services provider, a broadband service provider, or a cable television operator that owns or controls pole attachments.
(2) “Commission” means the Florida Public Service Commission.
(3) “Communications services provider” means an entity providing communications services as defined in s. 202.11(1).
(4) “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.
(5) “Pole” means a pole used for electric distribution service, streetlights, communications services, local exchange services, or cable television services which is owned in whole or in part by a pole owner. The term does not include a pole used solely to support wireless communications service facilities or a pole with no electrical facilities attached.
(6) “Pole attachment” means any attachment by a public utility, local exchange carrier communications services provider, broadband provider, or cable television operator to a pole, duct, conduit, or right-of-way owned or controlled by a pole owner.
(7) “Pole owner” means a local exchange carrier, a public utility, a communications services provider, or a cable television operator that owns a pole.
(8) “Public utility” means every person, corporation, partnership, association, or other legal entity and their lessees, trustees, or receivers supplying electricity or gas (natural, manufactured, or similar gaseous substance) to or for the public within this state; but the term “public utility” does not include either a cooperative now or hereafter organized and existing under the Rural Electric Cooperative Law of the state; a municipality or any agency thereof; any dependent or independent special natural gas district; any natural gas transmission pipeline company making only sales or transportation delivery of natural gas at wholesale and to direct industrial consumers; any entity selling or arranging for sales of natural gas which neither owns nor operates natural gas transmission or distribution facilities within the state; or a person supplying liquefied petroleum gas, in either liquid or gaseous form, irrespective of the method of distribution or delivery, or owning or operating facilities beyond the outlet of a meter through which natural gas is supplied for compression and delivery into motor vehicle fuel tanks or other transportation containers, unless such person also supplies electricity or manufactured or natural gas.
(9) “Redundant pole” means a pole owned or controlled by a pole owner which is:
(a) Near or adjacent to a new pole that is intended to replace the old pole from which some or all of the pole attachments have not been removed and transferred to the new pole;
(b) Left standing after the pole owner has relocated its facilities to underground but on which pole attachments of other attaching entities remain; or
(c) Left standing after a pole owner’s attachments have been removed from that route or location to accommodate a new route or design for the delivery of service.
History.—s. 2, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 16, ch. 80-35; s. 2, ch. 81-318; ss. 1, 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 14, ch. 92-284; s. 2, ch. 2021-191; s. 27, ch. 2022-4.
366.03 General duties of public utility.—Each public utility shall furnish to each person applying therefor reasonably sufficient, adequate, and efficient service upon terms as required by the commission. No public utility shall be required to furnish electricity or gas for resale except that a public utility may be required to furnish gas for containerized resale. All rates and charges made, demanded, or received by any public utility for any service rendered, or to be rendered by it, and each rule and regulation of such public utility, shall be fair and reasonable. No public utility shall make or give any undue or unreasonable preference or advantage to any person or locality, or subject the same to any undue or unreasonable prejudice or disadvantage in any respect.
History.—s. 3, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 1, 15, ch. 82-25; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.031 Definitions; preference relating to cable television prohibited; penalties.—
(1) As used in this section, the term:
(a) “Affiliate,” when used in relation to any person, means another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person.
(b) “Cable service” means:
1. The one-way transmission to subscribers of video programming or any other programming service; and
2. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
(c) “Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
2. A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way;
3. A facility of a common carrier, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
4. Any facilities of any electric utility used solely for operating its electric utility systems.
(d) “Video programming” means programming provided by or generally considered comparable to programming provided by a television broadcast station or cable system.
(2) No electric utility shall make or give any preference or advantage to any person as an accommodation or inducement to that person to contract with or take the services of any entity which is an affiliate of such electric utility and which entity provides video programming to persons within all or any part of the service area of such electric utility.
(3) No electric utility shall make or give any preference or advantage over any entity which is not an affiliate of such electric utility, and which entity provides video programming to persons within all or any part of the service area of such electric utility, to any entity which is an affiliate of such electric utility and which entity provides video programming to persons within all or any part of the service area of such electric utility.
(4) Upon a finding by a court of competent jurisdiction that either any electric utility or its affiliate providing video programming services within all or any part of the service area of the electric utility has violated the provisions of this section, the court:
(a) May award actual damages to any other entity not an affiliate of the electric utility providing video programming services to persons within all or any part of the service area of the electric utility, and may grant injunctive relief.
(b) Shall award costs of any action, together with reasonable attorney’s fees, to the prevailing party.
History.—s. 4, ch. 87-266; s. 22, ch. 89-292; s. 4, ch. 91-429.
366.032 Preemption over utility service restrictions.—
(1) A municipality, county, special district, or other political subdivision of the state may not enact or enforce a resolution, ordinance, rule, code, or policy or take any action that restricts or prohibits or has the effect of restricting or prohibiting the types or fuel sources of energy production which may be used, delivered, converted, or supplied by the following entities to serve customers that such entities are authorized to serve:
(a) A public utility or an electric utility as defined in this chapter;
(b) An entity formed under s. 163.01 that generates, sells, or transmits electrical energy;
(c) A natural gas utility as defined in s. 366.04(3)(c);
(d) A natural gas transmission company as defined in s. 368.103; or
(e) A Category I liquefied petroleum gas dealer or Category II liquefied petroleum gas dispenser or Category III liquefied petroleum gas cylinder exchange operator as defined in s. 527.01.
(2) Except to the extent necessary to enforce the Florida Building Code adopted pursuant to s. 553.73 or the Florida Fire Prevention Code adopted pursuant to s. 633.202, a municipality, county, special district, or other political subdivision of the state may not enact or enforce a resolution, an ordinance, a rule, a code, or a policy or take any action that restricts or prohibits or has the effect of restricting or prohibiting the use of an appliance, including a stove or grill, which uses the types or fuel sources of energy production which may be used, delivered, converted, or supplied by the entities listed in subsection (1). As used in this subsection, the term “appliance” means a device or apparatus manufactured and designed to use energy and for which the Florida Building Code or the Florida Fire Prevention Code provides specific requirements.
(3) Notwithstanding the restrictions of this section, this section does not prevent the board of a municipality or governmental entity which owns or operates and directly controls an electric or natural gas utility from passing rules, regulations, or policies governing the utility.
(4) This section does not expand or alter the jurisdiction of the commission over public utilities or electric utilities.
(5) Any municipality, county, special district, or political subdivision charter, resolution, ordinance, rule, code, policy, or action that is preempted by this act that existed before or on July 1, 2021, is void.
History.—ss. 1, 2, ch. 2021-150; s. 28, ch. 2022-4; s. 10, ch. 2023-155; s. 1, ch. 2023-285.
366.04 Jurisdiction of commission.—
(1) In addition to its existing functions, the commission shall have jurisdiction to regulate and supervise each public utility with respect to its rates and service; assumption by it of liabilities or obligations as guarantor, endorser, or surety; and the issuance and sale of its securities, except a security which is a note or draft maturing not more than 1 year after the date of such issuance and sale and aggregating (together with all other then-outstanding notes and drafts of a maturity of 1 year or less on which such public utility is liable) not more than 5 percent of the par value of the other securities of the public utility then outstanding. In the case of securities having no par value, the par value for the purpose of this section shall be the fair market value as of the date of issue. The commission, upon application by a public utility, may authorize the utility to issue and sell securities of one or more offerings, or of one or more types, over a period of up to 12 months; or, if the securities are notes or drafts maturing not more than 1 year after the date of issuance and sale, the commission, upon such application, may authorize the utility to issue and sell such securities over a period of up to 24 months. The commission may take final action to grant an application by a public utility to issue and sell securities or to assume liabilities or obligations after having given notice in the Florida Administrative Register published at least 7 days in advance of final agency action. In taking final action on such application, the commission may deny authorization for the issuance or sale of a security or assumption of a liability or obligation if the security, liability, or obligation is for nonutility purposes; and shall deny authorization for the issuance or sale of a security or assumption of a liability or obligation if the financial viability of the public utility is adversely affected such that the public utility’s ability to provide reasonable service at reasonable rates is jeopardized. Securities issued by a public utility or liabilities or obligations assumed by a public utility as guarantor, endorser, or surety pursuant to an order of the commission, which order is certified by the clerk of the commission and which order approves or authorizes the issuance and sale of such securities or the assumption of such liabilities or obligations, shall not be invalidated by a modification, repeal, or amendment to that order or by a supplemental order; however, the commission’s approval of the issuance of securities or the assumption of liabilities or obligations shall constitute approval only as to the legality of the issue or assumption, and in no way shall it be considered commission approval of the rates, service, accounts, valuation, estimates, or determinations of cost or any other such matter. The jurisdiction conferred upon the commission shall be exclusive and superior to that of all other boards, agencies, political subdivisions, municipalities, towns, villages, or counties, and, in case of conflict therewith, all lawful acts, orders, rules, and regulations of the commission shall in each instance prevail.
(2) In the exercise of its jurisdiction, the commission shall have power over electric utilities for the following purposes:
(a) To prescribe uniform systems and classifications of accounts.
(b) To prescribe a rate structure for all electric utilities.
(c) To require electric power conservation and reliability within a coordinated grid, for operational as well as emergency purposes.
(d) To approve territorial agreements between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. However, nothing in this chapter shall be construed to alter existing territorial agreements as between the parties to such agreements.
(e) To resolve, upon petition of a utility or on its own motion, any territorial dispute involving service areas between and among rural electric cooperatives, municipal electric utilities, and other electric utilities under its jurisdiction. In resolving territorial disputes, the commission may consider, but not be limited to consideration of, the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population, the degree of urbanization of the area, its proximity to other urban areas, and the present and reasonably foreseeable future requirements of the area for other utility services.
(f) To prescribe and require the filing of periodic reports and other data as may be reasonably available and as necessary to exercise its jurisdiction hereunder.
No provision of this chapter shall be construed or applied to impede, prevent, or prohibit any municipally owned electric utility system from distributing at retail electrical energy within its corporate limits, as such corporate limits exist on July 1, 1974; however, existing territorial agreements shall not be altered or abridged hereby.
(3) In the exercise of its jurisdiction, the commission shall have the authority over natural gas utilities for the following purposes:
(a) To approve territorial agreements between and among natural gas utilities. However, nothing in this chapter shall be construed to alter existing territorial agreements between the parties to such agreements.
(b) To resolve, upon petition of a utility or on its own motion, any territorial dispute involving service areas between and among natural gas utilities. In resolving territorial disputes, the commission may consider, but not be limited to consideration of, the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population, the degree of urbanization of the area, its proximity to other urban areas, and the present and reasonably foreseeable future requirements of the area for other utility services.
(c) For purposes of this subsection, “natural gas utility” means any utility which supplies natural gas or manufactured gas or liquefied gas with air admixture, or similar gaseous substance by pipeline, to or for the public and includes gas public utilities, gas districts, and natural gas utilities or municipalities or agencies thereof.
(4) Any customer shall be given an opportunity to present oral or written communications in commission proceedings to approve territorial agreements or resolve territorial disputes. If the commission proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or rebut it. Any substantially affected customer shall have the right to intervene in such proceedings.
(5) The commission shall further have jurisdiction over the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an 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.
(6) The commission shall further have exclusive jurisdiction to prescribe and enforce safety standards for transmission and distribution facilities of all public electric utilities, cooperatives organized under the Rural Electric Cooperative Law, and electric utilities owned and operated by municipalities. In adopting safety standards, the commission shall, at a minimum:
(a) Adopt the 1984 edition of the National Electrical Safety Code (ANSI C2) as initial standards; and
(b) Adopt, after review, any new edition of the National Electrical Safety Code (ANSI C2).
The standards prescribed by the current 1984 edition of the National Electrical Safety Code (ANSI C2) shall constitute acceptable and adequate requirements for the protection of the safety of the public, and compliance with the minimum requirements of that code shall constitute good engineering practice by the utilities. The administrative authority referred to in the 1984 edition of the National Electrical Safety Code is the commission. However, nothing herein shall be construed as superseding, repealing, or amending the provisions of s. 403.523(1) and (10).
(7)(a) As used in this subsection, the term “affected municipal electric utility” means a municipality that operates an electric utility that:
1. Serves two cities in the same county;
2. Is located in a noncharter county;
3. Has between 30,000 and 35,000 retail electric customers as of September 30, 2007; and
4. Does not have a service territory that extends beyond its home county as of September 30, 2007.
(b) Each affected municipal electric utility shall conduct a referendum election of all of its retail electric customers, with each named retail electric customer having one vote, concurrent with the next regularly scheduled general election following the effective date of this act.
(c) The ballot for the referendum election required under paragraph (b) shall contain the following question: “Should a separate electric utility authority be created to operate the business of the electric utility in the affected municipal electric utility?” The statement shall be followed by the word “yes” and the word “no.”
(d) The provisions of the Election Code relating to notice and conduct of the election shall be followed to the extent practicable. Costs of the referendum election shall be borne by the affected municipal electric utility.
(8)(a) The commission shall regulate and enforce rates, charges, terms, and conditions of pole attachments, including the types of attachments regulated under 47 U.S.C. s. 224(a)(4), attachments to streetlight fixtures, attachments to poles owned by a public utility, or attachments to poles owned by a communications services provider, to ensure that such rates, charges, terms, and conditions are just and reasonable. The commission’s authority under this subsection includes, but is not limited to, the state regulatory authority referenced in 47 U.S.C. s. 224(c).
(b) In the development of rules pursuant to paragraph (g), the commission shall consider the interests of the subscribers and users of the services offered through such pole attachments, as well as the interests of the consumers of any pole owner providing such attachments.
(c) It is the intent of the Legislature to encourage parties to enter into voluntary pole attachment agreements, and this subsection may not be construed to prevent parties from voluntarily entering into pole attachment agreements without commission approval.
(d) A party’s right to nondiscriminatory access to a pole under this subsection is identical to the rights afforded under 47 U.S.C. s. 224(f)(1). A pole owner may deny access to its poles on a nondiscriminatory basis when there is insufficient capacity, for reasons of safety and reliability, and when required by generally applicable engineering purposes. A pole owner’s evaluation of capacity, safety, reliability, and engineering requirements must consider relevant construction and reliability standards approved by the commission.
(e) The commission shall hear and resolve complaints concerning rates, charges, terms, conditions, voluntary agreements, or any denial of access relative to pole attachments. Federal Communications Commission precedent is not binding upon the commission in the exercise of its authority under this subsection. When taking action upon such complaints, the commission shall establish just and reasonable cost-based rates, terms, and conditions for pole attachments and shall apply the decisions and orders of the Federal Communications Commission and any appellate court decisions reviewing an order of the Federal Communications Commission regarding pole attachment rates, terms, or conditions in determining just and reasonable pole attachment rates, terms, and conditions unless a pole owner or attaching entity establishes by competent substantial evidence pursuant to proceedings conducted pursuant to ss. 120.569 and 120.57 that an alternative cost-based pole attachment rate is just and reasonable and in the public interest.
(f) In the administration and implementation of this subsection, the commission shall authorize any petitioning pole owner or attaching entity to participate as an intervenor with full party rights under chapter 120 in the first four formal administrative proceedings conducted to determine pole attachment rates under this section. These initial four proceedings are intended to provide commission precedent on the establishment of pole attachment rates by the commission and help guide negotiations toward voluntary pole attachment agreements. After the fourth such formal administrative proceeding is concluded by final order, parties to subsequent pole attachment rate proceedings are limited to the specific pole owner and pole attaching entities involved in and directly affected by the specific pole attachment rate.
(g) The commission shall propose procedural rules to administer and implement this subsection. The rules must be proposed for adoption no later than January 1, 2022, and, upon adoption of such rules, shall provide its certification to the Federal Communications Commission pursuant to 47 U.S.C. s. 224(c)(2).
(9)(a) The commission shall regulate the safety, vegetation management, repair, replacement, maintenance, relocation, emergency response, and storm restoration requirements for poles of communication services providers. This subsection does not apply to a communications services provider that owns no poles.
(b) The commission shall adopt rules to administer and implement this subsection. The rules must be proposed for adoption no later than April 1, 2022, and must address at least the following:
1. Mandatory pole inspections, including repair or replacement;
2. Vegetation management requirements for poles owned by providers of communications services; and
3. Monetary penalties to be imposed upon any communications services provider that fails to comply with any such rule of the commission. Monetary penalties imposed by the commission must be consistent with s. 366.095.
(c) The commission may access the books and records of communications services providers to the limited extent necessary to perform its functions and to exercise its authority under subsection (8), this subsection, and s. 366.97(4). Upon request by a communications services provider, any records that are received by the commission under this paragraph which are proprietary confidential business information under s. 364.183 or s. 366.093 shall retain their status as confidential or exempt from disclosure under s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
History.—s. 4, ch. 26545, 1951; s. 1, ch. 63-288; s. 1, ch. 63-279; s. 1, ch. 65-52; s. 1, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 3, 16, ch. 80-35; s. 2, ch. 81-318; s. 4, ch. 86-173; ss. 2, 20, 22, ch. 89-292; s. 50, ch. 90-331; s. 4, ch. 91-429; s. 13, ch. 95-146; s. 16, ch. 2006-230; s. 37, ch. 2008-227; s. 32, ch. 2013-14; s. 66, ch. 2014-17; s. 3, ch. 2021-191; s. 29, ch. 2022-4.
366.041 Rate fixing; adequacy of facilities as criterion.—
(1) In fixing the just, reasonable, and compensatory rates, charges, fares, tolls, or rentals to be observed and charged for service within the state by any and all public utilities under its jurisdiction, the commission is authorized to give consideration, among other things, to the efficiency, sufficiency, and adequacy of the facilities provided and the services rendered; the cost of providing such service and the value of such service to the public; the ability of the utility to improve such service and facilities; and energy conservation and the efficient use of alternative energy resources; provided that no public utility shall be denied a reasonable rate of return upon its rate base in any order entered pursuant to such proceedings. In its consideration thereof, the commission shall have authority, and it shall be the commission’s duty, to hear service complaints, if any, that may be presented by subscribers and the public during any proceedings involving such rates, charges, fares, tolls, or rentals; however, no service complaints shall be taken up or considered by the commission at any proceedings involving rates, charges, fares, tolls, or rentals unless the utility has been given at least 30 days’ written notice thereof, and any proceeding may be extended, prior to final determination, for such period; further, no order hereunder shall be made effective until a reasonable time has been given the utility involved to correct the cause of service complaints, considering the factor of growth in the community and availability of necessary equipment.
(2) The power and authority herein conferred upon the commission shall not cancel or amend any existing punitive powers of the commission but shall be supplementary thereto and shall be construed liberally to further the legislative intent that adequate service be rendered by public utilities in the state in consideration for the rates, charges, fares, tolls, and rentals fixed by said commission and observed by said utilities under its jurisdiction.
(3) The term “public utility” as used herein means all persons or corporations which the commission has the authority, power, and duty to regulate for the purpose of fixing rates and charges for services rendered and requiring the rendition of adequate service.
(4) No electric utility may collect impact fees designed to recover capital costs in initiating new service unless the utility can demonstrate and the commission finds that such fees are fair, just, and reasonable and are collected from the ultimate utility customer of record at such time as or after permanent electric service is provided. This prohibition shall not apply to underground electric distribution lines or line extension charges collected pursuant to approved tariffs.
History.—ss. 1, 2, 3, 4, ch. 67-326; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 4, 16, ch. 80-35; s. 2, ch. 81-318; ss. 3, 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.05 Powers.—
(1)(a) In the exercise of such jurisdiction, the commission shall have power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, including the ability to adopt construction standards that exceed the National Electrical Safety Code, for purposes of ensuring the reliable provision of service, and service rules and regulations to be observed by each public utility; to require repairs, improvements, additions, replacements, and extensions to the plant and equipment of any public utility when reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto; to employ and fix the compensation for such examiners and technical, legal, and clerical employees as it deems necessary to carry out the provisions of this chapter; and to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement and enforce the provisions of this chapter.
(b) If the commission authorizes a public utility to charge tiered rates based upon levels of usage and to vary its regular billing period, the utility may not charge a customer a higher rate because of an increase in usage attributable to an extension of the billing period; however, the regular meter reading date may not be advanced or postponed more than 5 days for routine operating reasons without prorating the billing for the period.
(c) Effective January 1, 2016, a utility may not charge or receive a deposit in excess of the following amounts:
1. For an existing account, the total deposit may not exceed 2 months of average actual charges, calculated by adding the monthly charges from the 12-month period immediately before the date any change in the deposit amount is sought, dividing this total by 12, and multiplying the result by 2. If the account has less than 12 months of actual charges, the deposit shall be calculated by adding the available monthly charges, dividing this total by the number of months available, and multiplying the result by 2.
2. For a new service request, the total deposit may not exceed 2 months of projected charges, calculated by adding the 12 months of projected charges, dividing this total by 12, and multiplying the result by 2. Once a new customer has had continuous service for a 12-month period, the amount of the deposit shall be recalculated using actual data. Any difference between the projected and actual amounts must be resolved by the customer paying any additional amount that may be billed by the utility or the utility returning any overcharge.
(d) If a utility has more than one rate for any customer class, it must notify each customer in that class of the available rates and explain how the rate is charged to the customer. If a customer contacts the utility seeking assistance in selecting the most advantageous rate, the utility must provide good faith assistance to the customer. The customer is responsible for charges for service provided under the selected rate.
(e) New tariffs and changes to an existing tariff, other than an administrative change that does not substantially change the meaning or operation of the tariff, must be approved by majority vote of the commission, except as otherwise specifically provided by law.
(2) Every public utility, as defined in s. 366.02, which in addition to the production, transmission, delivery or furnishing of heat, light, or power also sells appliances or other merchandise shall keep separate and individual accounts for the sale and profit deriving from such sales. No profit or loss shall be taken into consideration by the commission from the sale of such items in arriving at any rate to be charged for service by any public utility.
(3) The commission shall provide for the examination and testing of all meters used for measuring any product or service of a public utility.
(4) Any consumer or user may have any such meter tested upon payment of the fees fixed by the commission.
(5) The commission shall establish reasonable fees to be paid for testing such meters on the request of the consumers or users, the fee to be paid by the consumer or user at the time of his or her request, but to be paid by the public utility and repaid to the consumer or user if the meter is found defective or incorrect to the disadvantage of the consumer or user, in excess of the degree or amount of tolerance customarily allowed for such meters, or as may be provided for in rules and regulations of the commission.
(6) The commission may purchase materials, apparatus, and standard measuring instruments for such examination and tests.
(7) The commission shall have the power to require reports from all electric utilities to assure the development of adequate and reliable energy grids.
(8) If the commission determines that there is probable cause to believe that inadequacies exist with respect to the energy grids developed by the electric utility industry, including inadequacies in fuel diversity or fuel supply reliability, it shall have the power, after proceedings as provided by law, and after a finding that mutual benefits will accrue to the electric utilities involved, to require installation or repair of necessary facilities, including generating plants and transmission facilities, with the costs to be distributed in proportion to the benefits received, and to take all necessary steps to ensure compliance. The electric utilities involved in any action taken or orders issued pursuant to this subsection shall have full power and authority, notwithstanding any general or special laws to the contrary, to jointly plan, finance, build, operate, or lease generating and transmission facilities and shall be further authorized to exercise the powers granted to corporations in chapter 361. This subsection shall not supersede or control any provision of the Florida Electrical Power Plant Siting Act, ss. 403.501-403.518.
(9) The commission may require the filing of reports and other data by a public utility or its affiliated companies, including its parent company, regarding transactions, or allocations of common costs, among the utility and such affiliated companies. The commission may also require such reports or other data necessary to ensure that a utility’s ratepayers do not subsidize nonutility activities.
(10) The Legislature finds that violations of commission orders or rules, in connection with the impairment of a public utility’s operations or service, constitute irreparable harm for which there is no adequate remedy at law. The commission is authorized to seek relief in circuit court including temporary and permanent injunctions, restraining orders, or any other appropriate order. Such remedies shall be in addition to and supplementary to any other remedies available for enforcement of agency action under s. 120.69 or the provisions of this chapter. The commission shall establish procedures implementing this section by rule.
(11) The commission has the authority to assess a public utility for reasonable travel costs associated with reviewing the records of the public utility and its affiliates when such records are kept out of state. The public utility may bring the records back into the state for review.
History.—s. 5, ch. 26545, 1951; s. 2, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss. 5, 16, ch. 80-35; s. 1, ch. 81-131; s. 2, ch. 81-318; ss. 4, 20, 22, ch. 89-292; s. 51, ch. 90-331; s. 4, ch. 91-429; s. 3, ch. 93-35; s. 552, ch. 95-148; s. 72, ch. 98-200; s. 17, ch. 2006-230; s. 5, ch. 2015-129.
366.051 Cogeneration; small power production; commission jurisdiction.—Electricity produced by cogeneration and small power production is of benefit to the public when included as part of the total energy supply of the entire electric grid of the state or consumed by a cogenerator or small power producer. The electric utility in whose service area a cogenerator or small power producer is located shall purchase, in accordance with applicable law, all electricity offered for sale by such cogenerator or small power producer; or the cogenerator or small power producer may sell such electricity to any other electric utility in the state. The commission shall establish guidelines relating to the purchase of power or energy by public utilities from cogenerators or small power producers and may set rates at which a public utility must purchase power or energy from a cogenerator or small power producer. In fixing rates for power purchased by public utilities from cogenerators or small power producers, the commission shall authorize a rate equal to the purchasing utility’s full avoided costs. A utility’s “full avoided costs” are the incremental costs to the utility of the electric energy or capacity, or both, which, but for the purchase from cogenerators or small power producers, such utility would generate itself or purchase from another source. The commission may use a statewide avoided unit when setting full avoided capacity costs. If the cogenerator or small power producer provides adequate security, based on its financial stability, and no costs in excess of full avoided costs are likely to be incurred by the electric utility over the term during which electricity is to be provided, the commission shall authorize the levelization of payments and the elimination of discounts due to risk factors in determining the rates. Public utilities shall provide transmission or distribution service to enable a retail customer to transmit electrical power generated by the customer at one location to the customer’s facilities at another location, if the commission finds that the provision of this service, and the charges, terms, and other conditions associated with the provision of this service, are not likely to result in higher cost electric service to the utility’s general body of retail and wholesale customers or adversely affect the adequacy or reliability of electric service to all customers. Notwithstanding any other provision of law, power generated by the customer and provided by the utility to the customers’ facility at another location is subject to the gross receipts tax imposed under s. 203.01 and the use tax imposed under s. 212.06. Such taxes shall apply at the time the power is provided at such other location and shall be based upon the cost price of such power as provided in s. 212.06(1)(b).
History.—ss. 5, 22, ch. 89-292; s. 4, ch. 91-429.
366.055 Availability of, and payment for, energy reserves.—
(1) Energy reserves of all utilities in the Florida energy grid shall be available at all times to ensure that grid reliability and integrity are maintained. The commission is authorized to take such action as is necessary to assure compliance. However, prior commitments as to energy use:
(a) In interstate commerce, as approved by the Federal Energy Regulatory Commission;
(b) Between one electric utility and another, which have been approved by the Federal Energy Regulatory Commission; or
(c) Between an electric utility which is a part of the energy grid created herein and another energy grid
shall not be abridged or altered except during an energy emergency as declared by the Governor and Cabinet.
(2)(a) When the energy produced by one electric utility is transferred to another or others through the energy grid and under the powers granted by this section, the commission shall direct the appropriate recipient utility or utilities to reimburse the producing utility in accordance with the latest wholesale electric rates approved for the producing utility by the Federal Energy Regulatory Commission for such purposes.
(b) Any utility which provides a portion of those transmission facilities involved in the transfer of energy from a producing utility to a recipient utility or utilities shall be entitled to receive an appropriate reimbursement commensurate with the transmission facilities and services provided. However, no utility shall be required to sell purchased power to a recipient utility or utilities at a rate lower than the rate at which the power is purchased from a producing utility.
(3) To assure efficient and reliable operation of a state energy grid, the commission shall have the power to require any electric utility to transmit electrical energy over its transmission lines from one utility to another or as a part of the total energy supply of the entire grid, subject to the provisions hereof.
History.—s. 3, ch. 74-196; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 6, 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.06 Rates; procedure for fixing and changing.—
(1) A public utility shall not, directly or indirectly, charge or receive any rate not on file with the commission for the particular class of service involved, and no change shall be made in any schedule. All applications for changes in rates shall be made to the commission in writing under rules and regulations prescribed, and the commission shall have the authority to determine and fix fair, just, and reasonable rates that may be requested, demanded, charged, or collected by any public utility for its service. The commission shall investigate and determine the actual legitimate costs of the property of each utility company, actually used and useful in the public service, and shall keep a current record of the net investment of each public utility company in such property which value, as determined by the commission, shall be used for ratemaking purposes and shall be the money honestly and prudently invested by the public utility company in such property used and useful in serving the public, less accrued depreciation, and shall not include any goodwill or going-concern value or franchise value in excess of payment made therefor. In fixing fair, just, and reasonable rates for each customer class, the commission shall, to the extent practicable, consider the cost of providing service to the class, as well as the rate history, value of service, and experience of the public utility; the consumption and load characteristics of the various classes of customers; and public acceptance of rate structures.
(2) Whenever the commission finds, upon request made or upon its own motion, that the rates demanded, charged, or collected by any public utility for public utility service, or that the rules, regulations, or practices of any public utility affecting such rates, are unjust, unreasonable, unjustly discriminatory, or in violation of law; that such rates are insufficient to yield reasonable compensation for the services rendered; that such rates yield excessive compensation for services rendered; or that such service is inadequate or cannot be obtained, the commission shall order and hold a public hearing, giving notice to the public and to the public utility, and shall thereafter determine just and reasonable rates to be thereafter charged for such service and promulgate rules and regulations affecting equipment, facilities, and service to be thereafter installed, furnished, and used.
(3) Pending a final order by the commission in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules, delivering to the utility requesting such increase, within 60 days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than 8 months from the date of filing the new schedules. The new rates or any portion not consented to shall go into effect under bond or corporate undertaking at the end of such period, but the commission shall, by order, require such public utility to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid and, upon completion of hearing and final decision in such proceeding, shall by further order require such public utility to refund with interest at a fair rate, to be determined by the commission in such manner as it may direct, such portion of the increased rate or charge as by its decision shall be found not justified. Any portion of such refund not thus refunded to patrons or customers of the public utility shall be refunded or disposed of by the public utility as the commission may direct; however, no such funds shall accrue to the benefit of the public utility. The commission shall take final commission action in the docket and enter its final order within 12 months of the commencement date for final agency action. As used in this subsection, the “commencement date for final agency action” means the date upon which it has been determined by the commission or its designee that the utility has filed with the clerk the minimum filing requirements as established by rule of the commission. Within 30 days after receipt of the application, rate request, or other written document for which the commencement date for final agency action is to be established, the commission or its designee shall either determine the commencement date for final agency action or issue a statement of deficiencies to the applicant, specifically listing why said applicant has failed to meet the minimum filing requirements. Such statement of deficiencies shall be binding upon the commission to the extent that, once the deficiencies in the statement are satisfied, the commencement date for final agency action shall be promptly established as provided herein. Thereafter, within 15 days after the applicant indicates to the commission that it believes that it has met the minimum filing requirements, the commission or its designee shall either determine the commencement date for final agency action or specifically enumerate in writing why the requirements have not been met, in which case this procedure shall be repeated until the commencement date for final agency action is established. When the commission initiates a proceeding, the commencement date for final agency action shall be the date upon which the order initiating the proceeding is issued.
(4) A natural gas utility or a public electric utility whose annual sales to end-use customers amount to less than 1,000 gigawatt hours may specifically request the commission to process its petition for rate relief using the agency’s proposed agency action procedure, as prescribed by commission rule. The commission shall enter its vote on the proposed agency action within 5 months of the commencement date for final agency action. If the commission’s proposed action is protested, the final decision must be rendered by the commission within 8 months after the date the protest is filed. At the expiration of 5 months following the commencement date for final agency action, if the commission has not taken action or if the commission’s action is protested by a party other than the utility, the utility may place its requested rates into effect under bond, escrow, or corporate undertaking subject to refund, upon notice to the commission and upon filing the appropriate tariffs. The utility must keep accurate records of amounts received as provided by subsection (3).
History.—s. 6, ch. 26545, 1951; s. 4, ch. 74-195; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 7, 16, ch. 80-35; s. 2, ch. 81-318; ss. 8, 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 5, ch. 93-35; s. 5, ch. 95-328; s. 1, ch. 2022-74.
366.07 Rates; adjustment.—Whenever the commission, after public hearing either upon its own motion or upon complaint, shall find the rates, rentals, charges or classifications, or any of them, proposed, demanded, observed, charged or collected by any public utility for any service, or in connection therewith, or the rules, regulations, measurements, practices or contracts, or any of them, relating thereto, are unjust, unreasonable, insufficient, excessive, or unjustly discriminatory or preferential, or in anywise in violation of law, or any service is inadequate or cannot be obtained, the commission shall determine and by order fix the fair and reasonable rates, rentals, charges or classifications, and reasonable rules, regulations, measurements, practices, contracts or service, to be imposed, observed, furnished or followed in the future.
History.—s. 7, ch. 26545, 1951; s. 24, ch. 57-1; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 9, 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.071 Interim rates; procedure.—
(1) The commission may, during any proceeding for a change of rates, upon its own motion, or upon petition from any party, or by a tariff filing of a public utility, authorize the collection of interim rates until the effective date of the final order. Such interim rates may be based upon a test period different from the test period used in the request for permanent rate relief. To establish a prima facie entitlement for interim relief, the commission, the petitioning party, or the public utility shall demonstrate that the public utility is earning outside the range of reasonableness on rate of return calculated in accordance with subsection (5).
(2)(a) In a proceeding for an interim increase in rates, the commission shall authorize, within 60 days of the filing for such relief, the collection of rates sufficient to earn the minimum of the range of rate of return calculated in accordance with subparagraph (5)(b)2. The difference between the interim rates and the previously authorized rates shall be collected under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.
(b) In a proceeding for an interim decrease in rates, the commission shall authorize, within 60 days of the filing for such relief, the continued collection of the previously authorized rates; however, revenues collected under those rates sufficient to reduce the achieved rate of return to the maximum of the range of rate of return calculated in accordance with subparagraph (5)(b)2. shall be placed under bond or corporate undertaking subject to refund with interest at a rate ordered by the commission.
(c) The commission shall determine whether a corporate undertaking may be filed in lieu of the bond.
(3) In granting such relief, the commission may, in an expedited hearing but within 60 days of the commencement of the proceeding, upon petition or upon its own motion, preclude the recovery of any extraordinary or imprudently incurred expenditures or, for good cause shown, increase the amount of the bond or corporate undertaking.
(4) Any refund ordered by the commission shall be calculated to reduce the rate of return of the public utility during the pendency of the proceeding to the same level within the range of the newly authorized rate of return which is found fair and reasonable on a prospective basis, but the refund shall not be in excess of the amount of the revenues collected subject to refund and in accordance with paragraph (2)(b). In addition, the commission may require interest on the refund at a rate established by the commission.
(5)(a) In setting interim rates or setting revenues subject to refund, the commission shall determine the revenue deficiency or excess by calculating the difference between the achieved rate of return of a public utility and its required rate of return applied to an average investment rate base or an end-of-period investment rate base.
(b) For purposes of this subsection:
1. “Achieved rate of return” means the rate of return earned by the public utility for the most recent 12-month period. The achieved rate of return shall be calculated by applying appropriate adjustments consistent with those which were used in the most recent individual rate proceeding of the public utility and annualizing any rate changes occurring during such period.
2. “Required rate of return” shall be calculated as the weighted average cost of capital for the most recent 12-month period, using the last authorized rate of return on equity of the public utility, the current embedded cost of fixed-rate capital, the actual cost of short-term debt, the actual cost of variable-cost debt, and the actual cost of other sources of capital which were used in the last individual rate proceeding of the public utility.
3. In a proceeding for an interim increase, the term “last authorized rate of return on equity” used in subparagraph 2. means the minimum of the range of the last authorized rate of return on equity established in the most recent individual rate proceeding of the public utility. In a proceeding for an interim decrease, the term “last authorized rate of return on equity” used in subparagraph 2. means the maximum of the range of the last authorized rate of return on equity established in the most recent individual rate proceeding of the public utility. The last authorized return on equity for purposes of this subsection shall be established only: in the most recent rate case of the utility; in a limited scope proceeding for the individual utility; or by voluntary stipulation of the utility approved by the commission.
History.—s. 8, ch. 80-35; s. 2, ch. 81-318; ss. 3, 15, ch. 82-25; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 6, ch. 93-35; s. 6, ch. 95-328.
366.072 Rate adjustment orders.—Any order issued by the commission adjusting general increases or reductions of the rates of an electric or gas company shall be reduced to writing including any dissenting or concurring opinions within 20 days of the official vote of the commission. Within said 20 days, the commission shall also mail a copy of the order to the clerk of the circuit court of each county in which customers are served who are affected by the rate adjustment, which copy shall be kept on file and made available to the public. The commission shall notify all parties of record in the proceeding of the date of such mailing. Such an order shall not be considered rendered for purposes of appeal, rehearing, or judicial review until the date the copies are mailed as required by this section. This provision shall not delay the effective date of the order. Such an order shall be considered rendered on the date of the official vote for the purposes of s. 366.06(3).
History.—s. 1, ch. 78-137; s. 10, ch. 80-35; s. 2, ch. 81-318; ss. 10, 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.075 Experimental and transitional rates.—
(1) The commission is authorized to approve rates on an experimental or transitional basis for any public utility to encourage energy conservation or to encourage efficiency. The application of such rates may be for limited geographic areas and for a limited period.
(2) The commission is authorized to approve the geographic area used in testing experimental rates and shall specify in the order setting those rates the area affected. The commission may extend the period designated for the test if it determines that further testing is necessary to fully evaluate the effectiveness of such experimental rates.
History.—s. 9, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.076 Limited proceedings; rules on subsequent adjustments.—
(1) Upon petition or its own motion, the commission may conduct a limited proceeding to consider and act upon any matter within its jurisdiction, including any matter the resolution of which requires a public utility to adjust its rates to consist with the provisions of this chapter. The commission shall determine the issues to be considered during such a proceeding and may grant or deny any request to expand the scope of the proceeding to include other matters.
(2) The commission may adopt rules for the determination of rates in full revenue requirement proceedings which rules provide for adjustments of rates based on revenues and costs during the period new rates are to be in effect and for incremental adjustments in rates for subsequent periods.
History.—s. 13, ch. 83-222; s. 22, ch. 89-292; s. 4, ch. 91-429.
366.08 Investigations, inspections; power of commission.—The commission or its duly authorized representatives may during all reasonable hours enter upon any premises occupied by any public utility and may set up and use thereon all necessary apparatus and appliances for the purpose of making investigations, inspections, examinations and tests and exercising any power conferred by this chapter; provided, such public utility shall have the right to be notified of and be represented at the making of such investigations, inspections, examinations and tests.
History.—s. 8, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.09 Incrimination at hearing of commission.—Any person called upon to testify before the commission or one of its examiners shall not be excused from answering on the ground or claim that his or her testimony would tend to incriminate himself or herself; but no person having so testified shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he or she may have testified or produced documentary evidence provided that no person so testifying shall be exempted from prosecution or punishment for perjury in so testifying.
History.—s. 9, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 553, ch. 95-148.
366.093 Public utility records; confidentiality.—
(1) The commission shall continue to have reasonable access to all public utility records and records of the utility’s affiliated companies, including its parent company, regarding transactions or cost allocations among the utility and such affiliated companies, and such records necessary to ensure that a utility’s ratepayers do not subsidize nonutility activities. Upon request of the public utility or other person, any records received by the commission which are shown and found by the commission to be proprietary confidential business information shall be kept confidential and shall be exempt from s. 119.07(1).
(2) Discovery in any docket or proceeding before the commission shall be in the manner provided for in Rule 1.280 of the Florida Rules of Civil Procedure. Information which affects a utility’s rates or cost of service shall be considered relevant for purposes of discovery in any docket or proceeding where the utility’s rates or cost of service are at issue. The commission shall determine whether information requested in discovery affects a utility’s rates or cost of service. Upon a showing by a utility or other person and a finding by the commission that discovery will require the disclosure of proprietary confidential business information, the commission shall issue appropriate protective orders designating the manner for handling such information during the course of the proceeding and for protecting such information from disclosure outside the proceeding. Such proprietary confidential business information shall be exempt from s. 119.07(1). Any records provided pursuant to a discovery request for which proprietary confidential business information status is requested shall be treated by the commission and the office of the Public Counsel and any other party subject to the public records law as confidential and shall be exempt from s. 119.07(1), pending a formal ruling on such request by the commission or the return of the records to the person providing the records. Any record which has been determined to be proprietary confidential business information and is not entered into the official record of the proceeding must be returned to the person providing the record within 60 days after the final order, unless the final order is appealed. If the final order is appealed, any such record must be returned within 30 days after the decision on appeal. The commission shall adopt the necessary rules to implement this provision.
(3) Proprietary confidential business information means information, regardless of form or characteristics, which is owned or controlled by the person or company, is intended to be and is treated by the person or company as private in that the disclosure of the information would cause harm to the ratepayers or the person’s or company’s business operations, and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or private agreement that provides that the information will not be released to the public. Proprietary confidential business information includes, but is not limited to:
(a) Trade secrets.
(b) Internal auditing controls and reports of internal auditors.
(c) Security measures, systems, or procedures.
(d) Information concerning bids or other contractual data, the disclosure of which would impair the efforts of the public utility or its affiliates to contract for goods or services on favorable terms.
(e) Information relating to competitive interests, the disclosure of which would impair the competitive business of the provider of the information.
(f) Employee personnel information unrelated to compensation, duties, qualifications, or responsibilities.
(4) Any finding by the commission that records contain proprietary confidential business information is effective for a period set by the commission not to exceed 18 months, unless the commission finds, for good cause, that the protection from disclosure shall be for a specified longer period. The commission shall order the return of records containing proprietary confidential business information when such records are no longer necessary for the commission to conduct its business. At that time, the commission shall order any other person holding such records to return them to the person providing the records. Records containing proprietary confidential business information which have not been returned at the conclusion of the period set pursuant to this subsection shall no longer be exempt from s. 119.07(1) unless the public utility or affected person shows, and the commission finds, that the records continue to contain proprietary confidential business information. Upon such finding, the commission may extend the period for confidential treatment for a period not to exceed 18 months unless the commission finds, for good cause, that the protection from disclosure shall be for a specified longer period. During commission consideration of an extension, the records in question will remain exempt from s. 119.07(1). The commission shall adopt rules to implement this provision which shall include notice to the public utility or affected person regarding the expiration of confidential treatment.
History.—ss. 2, 15, ch. 82-25; ss. 11, 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.095 Penalties.—The commission shall have the power to impose upon any entity subject to its jurisdiction under this chapter that is found to have refused to comply with or to have willfully violated any lawful rule or order of the commission or any provision of this chapter a penalty for each offense of not more than $5,000, which penalty shall be fixed, imposed, and collected by the commission. Each day that such refusal or violation continues shall constitute a separate offense. Each penalty shall be a lien upon the real and personal property of the entity, enforceable by the commission as a statutory lien under chapter 85.
History.—ss. 2, 15, ch. 82-25; ss. 12, 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.10 Judicial review.—As authorized by s. 3(b)(2), Art. V of the State Constitution, the Supreme Court shall review, upon petition, any action of the commission relating to rates or service of utilities providing electric or gas service.
History.—s. 10, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 11, 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.11 Certain exemptions.—
(1) No 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, 366.80-366.83, and 366.91, to utilities owned and operated by municipalities, whether within or without any municipality, or by cooperatives organized and existing under the Rural Electric Cooperative Law of the state, or 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 and pursuant to any contracts now in effect or which may be entered into in the future, 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.
(2) Nothing herein shall restrict the police power of municipalities over their streets, highways, and public places or the power to maintain or require the maintenance thereof or the right of a municipality to levy taxes on public services under s. 166.231 or affect the right of any municipality to continue to receive revenue from any public utility as is now provided or as may be hereafter provided in any franchise.
History.—s. 11, ch. 26545, 1951; s. 5, ch. 74-196; s. 3, ch. 76-168; s. 7, ch. 76-265; s. 108, ch. 77-104; s. 1, ch. 77-457; ss. 12, 16, ch. 80-35; s. 217, ch. 81-259; s. 2, ch. 81-318; ss. 13, 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 2, ch. 2005-259; s. 67, ch. 2014-17.
366.125 Natural gas jurisdiction limits.—Any provision of this chapter to the contrary notwithstanding, the jurisdiction of the commission over the sale of natural gas shall not extend beyond the outlet of the customer’s meter set assembly when the means of delivery of natural gas is other than by pipeline.
History.—ss. 4, 15, ch. 82-25; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.13 Taxes, not affected.—No provision of this chapter shall in any way affect any municipal tax or franchise tax in any manner whatsoever.
History.—s. 13A, ch. 26545, 1951; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 16, ch. 80-35; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429.
366.14 Regulatory assessment fees.—Notwithstanding any provision of law to the contrary, each regulated company under the jurisdiction of the commission which was in operation for any part of the preceding 6-month period shall pay to the commission within 30 days following the end of each 6-month period a fee based upon its gross operating revenues for that period. The fee may not be greater than:
(1) For each public utility that supplies electricity, 0.125 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities, municipal electric utilities, and rural electric cooperatives or any combination thereof;
(2) For each public utility that supplies gas (natural, manufactured, or similar gaseous substance), 0.5 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities and municipal gas utilities or any combination thereof;
(3) For each municipal gas utility or gas district, 0.25 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities and municipal gas utilities or any combination thereof; and
(4) For each municipal electric utility or rural electric cooperative, 0.015625 percent of its gross operating revenues derived from intrastate business, excluding sales for resale between public utilities, municipal electric utilities, or rural electric cooperatives or any combination thereof.
History.—ss. 16, 22, ch. 89-292; s. 4, ch. 91-429.
366.15 Medically essential electric public utility service.—
(1) As used in this section, the term “medically essential” means the medical dependence on electric-powered equipment that must be operated continuously or as circumstances require as specified by a physician to avoid the loss of life or immediate hospitalization of the customer or another permanent resident at the residential service address.
(2) Each public utility shall designate employees who are authorized to direct an ordered continuation or restoration of medically essential electric service. A public utility shall not impose upon any customer any additional deposit to continue or restore medically essential electric service.
(3)(a) Each public utility shall annually provide a written explanation of the certification process for medically essential electric service to each utility customer. Certification of a customer’s electricity needs as medically essential requires the customer to complete forms supplied by the public utility and to submit a form completed by a physician licensed in this state pursuant to chapter 458 or chapter 459 which states in medical and nonmedical terms why the electric service is medically essential. False certification of medically essential service by a physician is a violation of s. 458.331(1)(h) or s. 459.015(1)(i).
(b) Medically essential service shall be recertified once every 12 months. The public utility shall send the certified customer by regular mail a package of recertification materials, including recertification forms, at least 30 days prior to the expiration of the customer’s certification. The materials shall advise the certified customer that he or she must complete and submit the recertification forms within 30 days after the expiration of customer’s existing certification. If the recertification forms are not received within this 30-day period, the public utility may terminate the customer’s certification.
(4) Each public utility shall certify a customer’s electric service as medically essential if the customer completes the requirements of subsection (3).
(5) Notwithstanding any other provision of this section, a public utility may disconnect service to a residence whenever an emergency may threaten the health or safety of a person, the surrounding area, or the public utility’s distribution system. The public utility shall act promptly to restore service as soon as feasible.
(6) No later than 24 hours before any scheduled disconnection of service for nonpayment of bills to a customer who requires medically essential service, a public utility shall attempt to contact the customer by telephone in order to provide notice of the scheduled disconnection. If the customer does not have a telephone number listed on the account or if the public utility cannot reach the customer or other adult resident of the premises by telephone by the specified time, the public utility shall send a representative to the customer’s residence to attempt to contact the customer, no later than 4 p.m. of the day before scheduled disconnection. If contact is not made, however, the public utility may leave written notification at the residence advising the customer of the scheduled disconnection. Thereafter, the public utility may disconnect service on the specified date.
(7) Each public utility customer who requires medically essential service is responsible for making satisfactory arrangements with the public utility to ensure payment for such service, and such arrangements must be consistent with the requirements of the utility’s tariff.
(8) Each public utility customer who requires medically essential service is solely responsible for any backup equipment or power supply and a planned course of action in the event of a power outage or interruption of service.
(9) Each public utility that provides electric service to any customer who requires medically essential service shall call, contact, or otherwise advise such customer of scheduled service interruptions.
(10)(a) Each public utility shall provide information on sources of state or local agency funding which may provide financial assistance to the public utility’s customers who require medically essential service and who notify the public utility of their need for financial assistance.
(b)1. Each public utility that operates a program to receive voluntary financial contributions from the public utility’s customers to provide assistance to persons who are unable to pay for the public utility’s services shall maintain a list of all agencies to which the public utility distributes such funds for such purposes and shall make the list available to any such person who requests the list.
2. Each public utility that operates such a program shall:
a. Maintain a system of accounting for the specific amounts distributed to each such agency, and the public utility and such agencies shall maintain a system of accounting for the specific amounts distributed to persons under such respective programs.
b. Train its customer service representatives to assist any person who possesses a medically essential certification as provided in this section in identifying such agencies and programs.
(11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.
History.—ss. 1, 2, ch. 2001-49.
366.80 Short title.—Sections 366.80-366.83 and 403.519 shall be known and may be cited as the “Florida Energy Efficiency and Conservation Act.”
History.—s. 5, ch. 80-65; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 68, ch. 2014-17.
366.81 Legislative findings and intent.—The Legislature finds and declares that it is critical to utilize the most efficient and cost-effective demand-side renewable energy systems and conservation systems in order to protect the health, prosperity, and general welfare of the state and its citizens. Reduction in, and control of, the growth rates of electric consumption and of weather-sensitive peak demand are of particular importance. The Legislature further finds that the Florida Public Service Commission is the appropriate agency to adopt goals and approve plans related to the promotion of demand-side renewable energy systems and the conservation of electric energy and natural gas usage. The Legislature directs the commission to develop and adopt overall goals and authorizes the commission to require each utility to develop plans and implement programs for increasing energy efficiency and conservation and demand-side renewable energy systems within its service area, subject to the approval of the commission. Since solutions to our energy problems are complex, the Legislature intends that the use of solar energy, renewable energy sources, highly efficient systems, cogeneration, and load-control systems be encouraged. Accordingly, in exercising its jurisdiction, the commission shall not approve any rate or rate structure which discriminates against any class of customers on account of the use of such facilities, systems, or devices. This expression of legislative intent shall not be construed to preclude experimental rates, rate structures, or programs. The Legislature further finds and declares that ss. 366.80-366.83 and 403.519 are to be liberally construed in order to meet the complex problems of reducing and controlling the growth rates of electric consumption and reducing the growth rates of weather-sensitive peak demand; increasing the overall efficiency and cost-effectiveness of electricity and natural gas production and use; encouraging further development of demand-side renewable energy systems; and conserving expensive resources, particularly petroleum fuels.
History.—s. 5, ch. 80-65; s. 2, ch. 81-318; ss. 14, 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 38, ch. 2008-227; s. 69, ch. 2014-17.
366.82 Definition; goals; plans; programs; annual reports; energy audits.—
(1) For the purposes of ss. 366.80-366.83 and 403.519:
(a) “Utility” means any person or entity of whatever form which provides electricity or natural gas at retail to the public, specifically including municipalities or instrumentalities thereof and cooperatives organized under the Rural Electric Cooperative Law and specifically excluding any municipality or instrumentality thereof, any cooperative organized under the Rural Electric Cooperative Law, or any other person or entity providing natural gas at retail to the public whose annual sales volume is less than 100 million therms or any municipality or instrumentality thereof and any cooperative organized under the Rural Electric Cooperative Law providing electricity at retail to the public whose annual sales as of July 1, 1993, to end-use customers is less than 2,000 gigawatt hours.
(b) “Demand-side renewable energy” means a system located on a customer’s premises generating thermal or electric energy using Florida renewable energy resources and primarily intended to offset all or part of the customer’s electricity requirements provided such system does not exceed 2 megawatts.
(2) The commission shall adopt appropriate goals for increasing the efficiency of energy consumption and increasing the development of demand-side renewable energy systems, specifically including goals designed to increase the conservation of expensive resources, such as petroleum fuels, to reduce and control the growth rates of electric consumption, to reduce the growth rates of weather-sensitive peak demand, and to encourage development of demand-side renewable energy resources. The commission may allow efficiency investments across generation, transmission, and distribution as well as efficiencies within the user base. Moneys received by a utility to implement measures to encourage the development of demand-side renewable energy systems shall be used solely for such purposes and related administrative costs.
(3) In developing the goals, the commission shall evaluate the full technical potential of all available demand-side and supply-side conservation and efficiency measures, including demand-side renewable energy systems. In establishing the goals, the commission shall take into consideration:
(a) The costs and benefits to customers participating in the measure.
(b) The costs and benefits to the general body of ratepayers as a whole, including utility incentives and participant contributions.
(c) The need for incentives to promote both customer-owned and utility-owned energy efficiency and demand-side renewable energy systems.
(d) The costs imposed by state and federal regulations on the emission of greenhouse gases.
(4) Subject to specific appropriation, the commission may expend up to $250,000 from the Florida Public Service Regulatory Trust Fund to obtain needed technical consulting assistance.
(5) The Department of Agriculture and Consumer Services shall be a party in the proceedings to adopt goals and shall file with the commission comments on the proposed goals, including, but not limited to:
(a) An evaluation of utility load forecasts, including an assessment of alternative supply-side and demand-side resource options.
(b) An analysis of various policy options that can be implemented to achieve a least-cost strategy, including nonutility programs targeted at reducing and controlling the per capita use of electricity in the state.
(c) An analysis of the impact of state and local building codes and appliance efficiency standards on the need for utility-sponsored conservation and energy efficiency measures and programs.
(6) The commission may change the goals for reasonable cause. The time period to review the goals, however, shall not exceed 5 years. After the programs and plans to meet those goals are completed, the commission shall determine what further goals, programs, or plans are warranted and adopt them.
(7) Following adoption of goals pursuant to subsections (2) and (3), the commission shall require each utility to develop plans and programs to meet the overall goals within its service area. The commission may require modifications or additions to a utility’s plans and programs at any time it is in the public interest consistent with this act. In approving plans and programs for cost recovery, the commission shall have the flexibility to modify or deny plans or programs that would have an undue impact on the costs passed on to customers. If any plan or program includes loans, collection of loans, or similar banking functions by a utility and the plan is approved by the commission, the utility shall perform such functions, notwithstanding any other provision of the law. However, no utility shall be required to loan its funds for the purpose of purchasing or otherwise acquiring conservation measures or devices, but nothing herein shall prohibit or impair the administration or implementation of a utility plan as submitted by a utility and approved by the commission under this subsection. If the commission disapproves a plan, it shall specify the reasons for disapproval, and the utility whose plan is disapproved shall resubmit its modified plan within 30 days. Prior approval by the commission shall be required to modify or discontinue a plan, or part thereof, which has been approved. If any utility has not implemented its programs and is not substantially in compliance with the provisions of its approved plan at any time, the commission shall adopt programs required for that utility to achieve the overall goals. Utility programs may include variations in rate design, load control, cogeneration, residential energy conservation subsidy, or any other measure within the jurisdiction of the commission which the commission finds likely to be effective; this provision shall not be construed to preclude these measures in any plan or program.
(8) The commission may authorize financial rewards for those utilities over which it has ratesetting authority that exceed their goals and may authorize financial penalties for those utilities that fail to meet their goals, including, but not limited to, the sharing of generation, transmission, and distribution cost savings associated with conservation, energy efficiency, and demand-side renewable energy systems additions.
(9) The commission is authorized to allow an investor-owned electric utility an additional return on equity of up to 50 basis points for exceeding 20 percent of their annual load-growth through energy efficiency and conservation measures. The additional return on equity shall be established by the commission through a limited proceeding.
(10) The commission shall require periodic reports from each utility and shall provide the Legislature and the Governor with an annual report by March 1 of the goals it has adopted and its progress toward meeting those goals. The commission shall also consider the performance of each utility pursuant to ss. 366.80-366.83 and 403.519 when establishing rates for those utilities over which the commission has ratesetting authority.
(11) The commission shall require each utility to offer, or to contract to offer, energy audits to its residential customers. This requirement need not be uniform, but may be based on such factors as level of usage, geographic location, or any other reasonable criterion, so long as all eligible customers are notified. The commission may extend this requirement to some or all commercial customers. The commission shall set the charge for audits by rule, not to exceed the actual cost, and may describe by rule the general form and content of an audit. In the event one utility contracts with another utility to perform audits for it, the utility for which the audits are performed shall pay the contracting utility the reasonable cost of performing the audits. Each utility over which the commission has ratesetting authority shall estimate its costs and revenues for audits, conservation programs, and implementation of its plan for the immediately following 6-month period. Reasonable and prudent unreimbursed costs projected to be incurred, or any portion of such costs, may be added to the rates which would otherwise be charged by a utility upon approval by the commission, provided that the commission shall not allow the recovery of the cost of any company image-enhancing advertising or of any advertising not directly related to an approved conservation program. Following each 6-month period, each utility shall report the actual results for that period to the commission, and the difference, if any, between actual and projected results shall be taken into account in succeeding periods. The state plan as submitted for consideration under the National Energy Conservation Policy Act shall not be in conflict with any state law or regulation.
(12) Notwithstanding the provisions of s. 377.703, the commission shall be the responsible state agency for performing, coordinating, implementing, or administering the functions of the state plan submitted for consideration under the National Energy Conservation Policy Act and any acts amendatory thereof or supplemental thereto and for performing, coordinating, implementing, or administering the functions of any future federal program delegated to the state which relates to consumption, utilization, or conservation of electricity or natural gas; and the commission shall have exclusive responsibility for preparing all reports, information, analyses, recommendations, and materials related to consumption, utilization, or conservation of electrical energy which are required or authorized by s. 377.703.
(13) The commission shall establish all minimum requirements for energy auditors used by each utility. The commission is authorized to contract with any public agency or other person to provide any training, testing, evaluation, or other step necessary to fulfill the provisions of this subsection.
History.—s. 5, ch. 80-65; s. 2, ch. 81-131; s. 2, ch. 81-318; ss. 5, 15, ch. 82-25; ss. 15, 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 81, ch. 96-321; s. 39, ch. 2008-227; s. 503, ch. 2011-142; s. 70, ch. 2014-17; s. 6, ch. 2015-129.
366.825 Clean Air Act compliance; definitions; goals; plans.—
(1) For the purposes of this section, reference to the “Clean Air Act” means 42 U.S.C. ss. 7401 et seq. as the same may hereinafter be amended and any related state or local legislation.
(2) Each public utility which owns or operates at least one electric generating unit affected by s. 404 or s. 405 of the Clean Air Act may submit, for commission approval, a plan to bring generating units into compliance with the Clean Air Act. A plan to implement compliance submitted by public utilities must include, at a minimum:
(a) The number and identity of affected generating units;
(b) A description of the proposed action, and alternative actions considered by the public utility, to reduce sulfur dioxide emissions to levels required by the Clean Air Act at each affected unit;
(c) A description of the proposed action, and alternative actions considered by the public utility, to comply with nitrogen oxide emission rates required by the Clean Air Act at each affected unit;
(d) Estimated effects of the public utility’s proposed plan on the following:
1. Requirements for construction and operation of proposed or alternative facilities;
2. Achievable emissions reductions and methods for monitoring emissions;
3. The public utility’s proposed schedule for implements of compliance activities;
4. The estimated cost of implementation of the public utility’s compliance plan to the utility’s customers;
5. The public utility’s present and potential future sources of fuel; and
6. A statement of why the public utility’s proposed compliance plan is reasonable and in the public interest.
(e) A description of the proposed actions to comply with federal, state, and local requirements to implement the Clean Air Act.
(3) The commission shall review a plan to implement the Clean Air Act compliance submitted by public utilities pursuant to this section in order to determine whether such plans, the costs necessarily incurred in implementing such plans, and any effect on rates resulting from such implementation are in the public interest. The commission shall by order approve or disapprove plans to implement compliance submitted by public utilities within 8 months after the date of filing. Approval of a plan submitted by a public utility shall establish that the utility’s plan to implement compliance is prudent and the commission shall retain jurisdiction to determine in a subsequent proceeding that the actual costs of implementing the compliance plan are reasonable; provided, however, that nothing in this section shall be construed to interfere with the authority of the Department of Environmental Protection to determine whether a public utility is in compliance with ss. 403.087 and 403.0872 or the State Air Implementation Plan for the Clean Air Act.
History.—s. 22, ch. 92-132; s. 182, ch. 94-356.
366.8255 Environmental cost recovery.—
(1) As used in this section, the term:
(a) “Electric utility” or “utility” means any investor-owned electric utility that owns, maintains, or operates an electric generation, transmission, or distribution system within the State of Florida and that is regulated under this chapter.
(b) “Commission” means the Florida Public Service Commission.
(c) “Environmental laws or regulations” includes all federal, state, or local statutes, administrative regulations, orders, ordinances, resolutions, or other requirements that apply to electric utilities and are designed to protect the environment.
(d) “Environmental compliance costs” includes all costs or expenses incurred by an electric utility in complying with environmental laws or regulations, including, but not limited to:
1. Inservice capital investments, including the electric utility’s last authorized rate of return on equity thereon.
2. Operation and maintenance expenses.
3. Fuel procurement costs.
4. Purchased power costs.
5. Emission allowance costs.
6. Direct taxes on environmental equipment.
7. Costs or expenses prudently incurred by an electric utility pursuant to an agreement entered into on or after the effective date of this act and prior to October 1, 2002, between the electric utility and the Florida Department of Environmental Protection or the United States Environmental Protection Agency for the exclusive purpose of ensuring compliance with ozone ambient air quality standards by an electrical generating facility owned by the electric utility.
8. Costs or expenses prudently incurred for scientific research and geological assessments of carbon capture and storage conducted in this state for the purpose of reducing an electric utility’s greenhouse gas emissions when such costs or expenses are incurred in joint research projects with Florida state government agencies and Florida state universities.
9. Costs or expenses prudently incurred by an electric utility after July 1, 2021, pursuant to an agreement between the electric utility and a governmental wastewater utility for the exclusive purpose of the electric utility constructing and operating a wastewater reuse system where operation of the system will serve to further compliance with environmental laws or regulations that apply to the electric utility and where the system fully or partially satisfies a local government’s reclaimed water reuse requirements under s. 403.064 or s. 403.086. At least 50 percent of the reclaimed water the system produces must be used in conjunction with the water requirements of an electrical generating facility or facilities owned by the electric utility to offset all or part of the electric utility’s water use authorized by permit.
(2) An electric utility may submit to the commission a petition describing the utility’s proposed environmental compliance activities and projected environmental compliance costs in addition to any Clean Air Act compliance activities and costs shown in a utility’s filing under s. 366.825. If approved, the commission shall allow recovery of the utility’s prudently incurred environmental compliance costs, including the costs incurred in compliance with the Clean Air Act, and any amendments thereto or any change in the application or enforcement thereof, through an environmental compliance cost-recovery factor that is separate and apart from the utility’s base rates. An adjustment for the level of costs currently being recovered through base rates or other rate-adjustment clauses must be included in the filing.
(3) The environmental compliance cost-recovery factor must be set periodically, but at least annually, based on projections of the utility’s environmental compliance costs during the forthcoming recovery period, and must be adjusted for variations in line losses. The environmental compliance cost-recovery factor must provide for periodic true-up of the utility’s actual environmental compliance costs with the projections on which past factors have been set, and must further require that any refund or collection made as part of the true-up process include interest.
(4) Environmental compliance costs recovered through the environmental cost-recovery factor shall be allocated to the customer classes using the criteria set out in s. 366.06(1), taking into account the manner in which similar types of investment or expense were allocated in the company’s last rate case.
(5) Recovery of environmental compliance costs under this section does not preclude inclusion of such costs in base rates in subsequent rate proceedings, if that inclusion is necessary and appropriate; however, any costs recovered in base rates may not also be recovered in the environmental cost-recovery clause.
History.—s. 7, ch. 93-35; s. 1, ch. 2002-276; s. 40, ch. 2008-227; s. 2, ch. 2012-89; s. 1, ch. 2021-222.
366.8260 Storm-recovery financing.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Ancillary agreement” means any bond, insurance policy, letter of credit, reserve account, surety bond, swap arrangement, hedging arrangement, liquidity or credit support arrangement, or other financial arrangement entered into in connection with the issuance of storm-recovery bonds.
(b) “Assignee” means any entity, including, but not limited to, a corporation, limited liability company, partnership or limited partnership, public authority, trust, financing entity, or other legally recognized entity to which an electric utility assigns, sells, or transfers, other than as security, all or a portion of its interest in or right to storm-recovery property. The term also includes any entity to which an assignee assigns, sells, or transfers, other than as security, its interest in or right to storm-recovery property.
(c) “Commission” means the Florida Public Service Commission.
(d) “Electric utility” or “utility” has the same meaning as that provided in s. 366.8255.
(e) “Financing costs” means:
1. Interest and acquisition, defeasance, or redemption premiums that are payable on storm-recovery bonds;
2. Any payment required under an ancillary agreement and any amount required to fund or replenish a reserve account or other accounts established under the terms of any indenture, ancillary agreement, or other financing documents pertaining to storm-recovery bonds;
3. Any other cost related to issuing, supporting, repaying, and servicing storm-recovery bonds, including, but not limited to, servicing fees, accounting and auditing fees, trustee fees, legal fees, consulting fees, administrative fees, placement and underwriting fees, capitalized interest, rating agency fees, stock exchange listing and compliance fees, and filing fees, including costs related to obtaining the financing order;
4. Any taxes and license fees imposed on the revenues generated from the collection of storm-recovery charges;
5. Any income taxes resulting from the collection of storm-recovery charges in any such case whether paid, payable, or accrued; or
6. Any state and local taxes, franchise, gross receipts, and other taxes or similar charges, including but not limited to, regulatory assessment fees, in any such case whether paid, payable, or accrued.
(f) “Financing order” means an order under subsection (2) which allows for the issuance of storm-recovery bonds; the imposition, collection, and periodic adjustments of storm-recovery charges; and the creation of storm-recovery property.
(g) “Financing party” means holders of storm-recovery bonds and trustees, collateral agents, or other persons acting for the benefit of holders of storm-recovery bonds.
(h) “Financing statement” has the same meaning as that provided in Article 9 of the Uniform Commercial Code.
(i) “Pledgee” means a financing party to which an electric utility or its successors or assignees mortgages, negotiates, hypothecates, pledges, or creates a security interest or lien on all or any portion of its interest in or right to storm-recovery property.
(j) “Storm” means a named tropical storm or hurricane that occurred during calendar year 2004 or thereafter.
(k) “Storm-recovery activity” means any activity or activities by or on behalf of an electric utility in connection with the restoration of service associated with electric power outages affecting customers of an electric utility as the result of a storm or storms, including, but not limited to, mobilization, staging, and construction, reconstruction, replacement, or repair of electric generation, transmission, or distribution facilities.
(l) “Storm-recovery bonds” means bonds, debentures, notes, certificates of participation, certificates of beneficial interest, certificates of ownership, or other evidences of indebtedness or ownership that are issued by an electric utility or an assignee pursuant to a financing order, the proceeds of which are used directly or indirectly to recover, finance, or refinance commission-approved storm-recovery costs, financing costs, costs to replenish the storm-recovery reserve to the level that existed before the storm or storms, or such other level as the commission may authorize in a financing order, and which are secured by or payable from storm-recovery property.
(m) “Storm-recovery charge” means the amounts authorized by the commission to recover, finance, or refinance storm-recovery costs, financing costs, costs to replenish the storm-recovery reserve to the level that existed before the storm or storms, or such other level as the commission may authorize in a financing order, or as provided for in a financing order to be imposed on all customer bills and collected by an electric utility or its successors or assignees, or a collection agent, in full through a charge that is separate and apart from the electric utility’s base rates, which charge shall be paid by all customers receiving transmission or distribution service from the electric utility or its successors or assignees under commission-approved rate schedules or under special contracts, even if the customer elects to purchase electricity from an alternative electricity supplier following a fundamental change in regulation of public utilities in this state.
(n) “Storm-recovery costs” means, at the option and request of the electric utility, and as approved by the commission pursuant to sub-subparagraph (2)(b)1.b., costs incurred or to be incurred by an electric utility in undertaking a storm-recovery activity. Such costs shall be net of applicable insurance proceeds and, where determined appropriate by the commission, shall include adjustments for normal capital replacement and operating costs, lost revenues, or other potential offsetting adjustments. Storm-recovery costs shall include the costs to finance any deficiency or deficiencies in storm-recovery reserves until such time as storm-recovery bonds are issued, and costs of retiring any existing indebtedness relating to storm-recovery activities.
(o) “Storm-recovery property” means:
1. All rights and interests of an electric utility or successor or assignee of the electric utility under a financing order, including the right to impose, bill, collect, and receive storm-recovery charges authorized in the financing order and to obtain periodic adjustments to such charges as provided in the financing order.
2. All revenues, collections, claims, rights to payments, payments, money, or proceeds arising from the rights and interests specified in subparagraph 1., regardless of whether such revenues, collections, claims, rights to payment, payments, money, or proceeds are imposed, billed, received, collected, or maintained together with or commingled with other revenues, collections, rights to payment, payments, money, or proceeds.
(p) “Storm-recovery reserve” means an electric utility storm reserve or such other similar reserve established by law or rule or pursuant to order of the commission.
(q) “Uniform Commercial Code” has the same meaning as that provided in s. 671.101.
(2) FINANCING ORDERS.—
(a) An electric utility may petition the commission for a financing order. For each petition, the electric utility shall:
1. Describe the storm-recovery activities that the electric utility has undertaken or proposes to undertake and describe the reasons for undertaking the activities.
2. Set forth the known storm-recovery costs and estimate the costs of any storm-recovery activities that are not completed, or for which the costs are not yet known, as identified and requested by the electric utility.
3. Set forth the level of the storm-recovery reserve that the utility proposes to establish or replenish and has determined would be appropriate to recover through storm-recovery bonds and is seeking to so recover and such level that the utility is funding or will seek to fund through other means, together with a description of the factors and calculations used in determining the amounts and methods of recovery.
4. Indicate whether the electric utility proposes to finance all or a portion of the storm-recovery costs and storm-recovery reserve using storm-recovery bonds. If the electric utility proposes to finance a portion of such costs, the electric utility shall identify that portion in the petition.
5. Estimate the financing costs related to the storm-recovery bonds.
6. Estimate the storm-recovery charges necessary to recover the storm-recovery costs, storm-recovery reserve, and financing costs and the period for recovery of such costs.
7. Estimate any cost savings or demonstrate how it would avoid or significantly mitigate rate impacts to customers resulting from financing storm-recovery costs with storm-recovery bonds as opposed to the traditional method of recovering such costs from customers and through alternative financing methods available to the electric utility.
8. File with the petition direct testimony supporting the petition.
(b)1. Proceedings on a petition submitted pursuant to paragraph (a) shall begin with a petition by an electric utility and shall be disposed of in accordance with the provisions of chapter 120 and applicable rules, except that the provisions of this section, to the extent applicable, shall control.
a. Within 7 days after the filing of a petition, the commission shall publish a case schedule, which schedule shall place the matter before the commission on an agenda that will permit a commission decision no later than 120 days after the date the petition is filed.
b. No later than 135 days after the date the petition is filed, the commission shall issue a financing order or an order rejecting the petition. A party to the commission proceeding may petition the commission for reconsideration of the financing order within 5 days after the date of its issuance. The commission shall issue a financing order authorizing financing of reasonable and prudent storm-recovery costs, the storm-recovery reserve amount determined appropriate by the commission, and financing costs if the commission finds that the issuance of the storm-recovery bonds and the imposition of storm-recovery charges authorized by the order are reasonably expected to result in lower overall costs or would avoid or significantly mitigate rate impacts to customers as compared with alternative methods of financing or recovering storm-recovery costs and storm-recovery reserve. Any determination of whether storm-recovery costs are reasonable and prudent shall be made with reference to the general public interest in, and the scope of effort required to provide, the safe and expeditious restoration of electric service.
2. In a financing order issued to an electric utility, the commission shall:
a. Except as provided in sub-subparagraph f. and in subparagraph 4., specify the amount of storm-recovery costs and the level of storm-recovery reserves, taking into consideration, to the extent the commission deems appropriate, any other methods used to recover these costs, and describe and estimate the amount of financing costs which may be recovered through storm-recovery charges; and specify the period over which such costs may be recovered.
b. Determine that the proposed structuring, expected pricing, and financing costs of the storm-recovery bonds are reasonably expected to result in lower overall costs or would avoid or significantly mitigate rate impacts to customers as compared with alternative methods of financing or recovering storm-recovery costs.
c. Provide that, for the period specified pursuant to sub-subparagraph a., the imposition and collection of storm-recovery charges authorized in the financing order shall be paid by all customers receiving transmission or distribution service from the electric utility or its successors or assignees under commission-approved rate schedules or under special contracts, even if the customer elects to purchase electricity from an alternative electric supplier following a fundamental change in regulation of public utilities in the state.
d. Determine what portion, if any, of the storm-recovery reserves must be held in a funded reserve and any limitations on how the reserve may be held, accessed, or used.
e. Include a formula-based mechanism for making expeditious periodic adjustments in the storm-recovery charges that customers are required to pay under the financing order and for making any adjustments that are necessary to correct for any overcollection or undercollection of the charges or to otherwise ensure the timely payment of storm-recovery bonds and financing costs and other required amounts and charges payable in connection with the storm-recovery bonds.
f. Specify the storm-recovery property that is, or shall be, created in favor of an electric utility or its successors or assignees and that shall be used to pay or secure storm-recovery bonds and financing costs.
g. Specify the degree of flexibility to be afforded to the electric utility in establishing the terms and conditions of the storm-recovery bonds, including, but not limited to, repayment schedules, interest rates, and other financing costs.
h. Provide that storm-recovery charges be allocated to the customer classes using the criteria set out in s. 366.06(1), in the manner in which these costs or their equivalent were allocated in the cost-of-service study approved in connection with the electric utility’s last rate case. If the electric utility’s last rate case was resolved by a settlement agreement, the cost-of-service methodology filed by the electric utility in that case shall be used.
i. Provide that, after the final terms of an issuance of storm-recovery bonds have been established and prior to the issuance of storm-recovery bonds, the electric utility shall determine the resulting initial storm-recovery charge in accordance with the financing order and such initial storm-recovery charge shall be final and effective upon the issuance of such storm-recovery bonds without further commission action.
j. Include any other conditions that the commission considers appropriate and that are not otherwise inconsistent with this section.
In performing the responsibilities of this subparagraph and subparagraph 5., the commission may engage outside consultants or counsel. Any expenses associated with such services shall be included as part of financing costs and included in storm-recovery charges.
3. A financing order issued to an electric utility may provide that creation of the electric utility’s storm-recovery property pursuant to sub-subparagraph 2.f. is conditioned upon, and shall be simultaneous with, the sale or other transfer of the storm-recovery property to an assignee and the pledge of the storm-recovery property to secure storm-recovery bonds.
4. If the commission issues a financing order, the electric utility shall file with the commission at least biannually a petition or a letter applying the formula-based mechanism pursuant to sub-subparagraph 2.e. and, based on estimates of consumption for each rate class and other mathematical factors, requesting administrative approval to make the adjustments described in sub-subparagraph 2.e. The review of such a request shall be limited to determining whether there is any mathematical error in the application of the formula-based mechanism relating to the appropriate amount of any overcollection or undercollection of storm-recovery charges and the amount of an adjustment. Such adjustments shall ensure the recovery of revenues sufficient to provide for the payment of principal, interest, acquisition, defeasance, financing costs, or redemption premium and other fees, costs, and charges in respect of storm-recovery bonds approved under the financing order. Within 60 days after receiving an electric utility’s request pursuant to this paragraph, the commission shall either approve the request or inform the electric utility of any mathematical errors in its calculation. If the commission informs the utility of mathematical errors in its calculation, the utility may correct its error and refile its request. The timeframes previously described in this paragraph shall apply to a refiled request.
5. Within 120 days after the issuance of storm-recovery bonds, the electric utility shall file with the commission information on the actual costs of the storm-recovery bond issuance. The commission shall review such information to determine if such costs incurred in the issuance of the bonds resulted in the lowest overall costs that were reasonably consistent with market conditions at the time of the issuance and the terms of the financing order. The commission may disallow any incremental issuance costs in excess of the lowest overall costs by requiring the utility to make a contribution to the storm reserve in an amount equal to the excess of actual issuance costs incurred, and paid for out of storm-recovery bond proceeds, and the lowest overall issuance costs as determined by the commission. The commission may not make adjustments to the storm-recovery charges for any such excess issuance costs.
6. Subsequent to the earlier of the transfer of storm-recovery property to an assignee or the issuance of storm-recovery bonds authorized thereby, a financing order is irrevocable and, except as provided in subparagraph 4. and paragraph (c), the commission may not amend, modify, or terminate the financing order by any subsequent action or reduce, impair, postpone, terminate, or otherwise adjust storm-recovery charges approved in the financing order. After the issuance of a financing order, the electric utility retains sole discretion regarding whether to assign, sell, or otherwise transfer storm-recovery property or to cause the storm-recovery bonds to be issued, including the right to defer or postpone such assignment, sale, transfer, or issuance.
(c) At the request of an electric utility, the commission may commence a proceeding and issue a subsequent financing order that provides for retiring and refunding storm-recovery bonds issued pursuant to the original financing order if the commission finds that the subsequent financing order satisfies all of the criteria specified in paragraph (b). Effective on retirement of the refunded storm-recovery bonds and the issuance of new storm-recovery bonds, the commission shall adjust the related storm-recovery charges accordingly.
(d) Within 30 days after the commission issues an order pursuant to paragraph (b) or a decision denying a request for reconsideration or, if the request for reconsideration is granted, within 30 days after the commission issues its decision on reconsideration, an adversely affected party may petition for judicial review in the Florida Supreme Court. The petition for review shall be served upon the executive director of the commission personally or by service at the office of the commission. Review on appeal shall be based solely on the record before the commission and briefs to the court and shall be limited to determining whether the order issued pursuant to paragraph (b), or the order on reconsideration, conforms to the constitution and laws of this state and the United States and is within the authority of the commission under this section. Inasmuch as delay in the determination of the appeal of a financing order will delay the issuance of storm-recovery bonds, thereby diminishing savings to customers which might be achieved if such bonds were issued as contemplated by a financing order, the Supreme Court shall proceed to hear and determine the action as expeditiously as practicable and give the action precedence over other matters not accorded similar precedence by law.
(e)1. A financing order remains in effect until the storm-recovery bonds issued pursuant to the order have been paid in full and the commission-approved financing costs of such bonds have been recovered in full.
2. A financing order issued to an electric utility shall remain in effect and unabated notwithstanding the reorganization, bankruptcy, or other insolvency proceedings of the electric utility or its successors or assignees.
(3) EXCEPTIONS TO COMMISSION JURISDICTION.—
(a) If the commission issues a financing order to an electric utility pursuant to this section, the commission may not, in exercising its powers and carrying out its duties regarding any matter within its authority pursuant to this chapter, consider the storm-recovery bonds issued pursuant to the order to be the debt of the electric utility other than for federal income tax purposes, consider the storm-recovery charges paid under the order to be the revenue of the electric utility for any purpose, or consider the storm-recovery costs or financing costs specified in the order to be the costs of the electric utility, nor may the commission determine any action taken by an electric utility which is consistent with the order to be unjust or unreasonable.
(b) The commission may not order or otherwise directly or indirectly require an electric utility to use storm-recovery bonds to finance any project, addition, plant, facility, extension, capital improvement, equipment, or any other expenditure, unless the electric utility has filed a petition under paragraph (2)(a) to finance such expenditure using storm-recovery bonds. The commission may not refuse to allow an electric utility to recover costs for storm-recovery activities in an otherwise permissible fashion, or refuse or condition authorization or approval pursuant to s. 366.04 of the issuance and sale by an electric utility of securities or the assumption by it of liabilities or obligations, solely because of the potential availability of storm-recovery financing.
(4) ELECTRIC UTILITY DUTIES.—
(a) The electric bills of an electric utility that has obtained a financing order and issued storm-recovery bonds must explicitly reflect that a portion of the charges on such bill represents storm-recovery charges approved in a financing order issued to the electric utility and, if the storm-recovery property has been transferred to an assignee, must include a statement to the effect that the assignee is the owner of the rights to storm-recovery charges and that the electric utility or any other entity, if applicable, is acting as a collection agent or servicer for the assignee. The tariff applicable to customers must indicate the storm-recovery charge and the ownership of that charge. The commission shall determine whether to require electric utilities to include such information or amounts owed with respect to the storm-recovery property as a separate line item on individual electric bills.
(b) The failure of an electric utility to comply with this subsection shall not invalidate, impair, or affect any financing order, storm-recovery property, storm-recovery charge, or storm-recovery bonds but shall subject the electric utility to penalties under s. 366.095.
(5) STORM-RECOVERY PROPERTY.—
(a)1. All storm-recovery property that is specified in a financing order shall constitute an existing, present property right or interest therein, notwithstanding that the imposition and collection of storm-recovery charges depends on the electric utility to which the order is issued performing its servicing functions relating to the collection of storm-recovery charges and on future electricity consumption. Such property shall exist whether or not the revenues or proceeds arising from the property have been billed, have accrued, or have been collected and notwithstanding the fact that the value or amount of the property is dependent on the future provision of service to customers by the electric utility or its successors or assignees.
2. Storm-recovery property specified in a financing order shall continue to exist until the storm-recovery bonds issued pursuant to the order are paid in full and all financing costs and other costs of the bonds have been recovered in full.
3. All or any portion of storm-recovery property specified in a financing order issued to an electric utility may be transferred, sold, conveyed, or assigned to a successor or assignee, including an affiliate or affiliates of the electric utility created for the limited purpose of acquiring, owning, or administering storm-recovery property or issuing storm-recovery bonds under the financing order. All or any portion of storm-recovery property may be pledged to secure storm-recovery bonds issued pursuant to the order, amounts payable to financing parties and to counterparties under any ancillary agreements, and other financing costs. Each such transfer, sale, conveyance, assignment, or pledge by an electric utility or affiliate of an electric utility is considered to be a transaction in the ordinary course of business.
4. If an electric utility defaults on any required payment of charges arising from storm-recovery property specified in a financing order, a court, upon application by an interested party, and without limiting any other remedies available to the applying party, shall order the sequestration and payment of the revenues arising from the storm-recovery property to the financing parties. Any such order shall remain in full force and effect notwithstanding any reorganization, bankruptcy, or other insolvency proceedings with respect to the electric utility or its successors or assignees.
5. The interest of a transferee, purchaser, acquirer, assignee, or pledgee in storm-recovery property specified in a financing order issued to an electric utility, and in the revenue and collections arising from that property, is not subject to setoff, counterclaim, surcharge, or defense by the electric utility or any other person or in connection with the reorganization, bankruptcy, or other insolvency of the electric utility or any other entity.
6. Any successor to an electric utility, whether pursuant to any reorganization, bankruptcy, or other insolvency proceeding or whether pursuant to any merger or acquisition, sale, or other business combination, or transfer by operation of law, as a result of electric utility restructuring or otherwise, shall perform and satisfy all obligations of, and have the same rights under a financing order as, the electric utility under the financing order in the same manner and to the same extent as the electric utility, including collecting and paying to the person entitled to receive the revenues, collections, payments, or proceeds of the storm-recovery property.
(b)1. Except as specified in this section, the Uniform Commercial Code does not apply to storm-recovery property or any right, title, or interest of a utility or assignee described in subparagraph (1)(o)1., whether before or after the issuance of the financing order. In addition, such right, title, or interest pertaining to a financing order, including, but not limited to, the associated storm-recovery property and any revenues, collections, claims, rights to payment, payments, money, or proceeds of or arising from storm-recovery charges pursuant to such order, shall not be deemed proceeds of any right or interest other than in the financing order and the storm-recovery property arising from the order.
2. The creation, attachment, granting, perfection, priority, and enforcement of liens and security interests in storm-recovery property to secure storm-recovery bonds is governed solely by this section and not by the Uniform Commercial Code.
3. A valid, enforceable, and attached lien and security interest in storm-recovery property may be created only upon the later of:
a. The issuance of a financing order;
b. The execution and delivery of a security agreement with a financing party in connection with the issuance of storm-recovery bonds; or
c. The receipt of value for the storm-recovery bonds.
A valid, enforceable, and attached security interest shall be perfected against third parties as of the date of filing of a financing statement in the Florida Secured Transaction Registry, as such registry is defined in Article 9 of the Uniform Commercial Code, in accordance with subparagraph 4., and shall thereafter be a continuously perfected lien; and such security interest in the storm-recovery property and all proceeds of such storm-recovery property, whether or not billed, accrued, or collected, and whether or not deposited into a deposit account and however evidenced, shall have priority in accordance with subparagraph 8. and take precedence over any subsequent judicial or other lien creditor. No continuation statement need be filed to maintain such perfection.
4. Financing statements required to be filed pursuant to this section shall be filed, maintained, and indexed in the same manner and in the same system of records maintained for the filing of financing statements in the Florida Secured Transaction Registry under Article 9 of the Uniform Commercial Code. The filing of such a financing statement shall be the only method of perfecting a lien or security interest on storm-recovery property.
5. The priority of a lien and security interest perfected under this paragraph is not impaired by any later modification of the financing order or storm-recovery property or by the commingling of funds arising from storm-recovery property with other funds, and any other security interest that may apply to those funds shall be terminated as to all funds transferred to a segregated account for the benefit of an assignee or a financing party or to an assignee or financing party directly.
6. If a default or termination occurs under the terms of the storm-recovery bonds, the financing parties or their representatives may foreclose on or otherwise enforce their lien and security interest in any storm-recovery property as if they were a secured party under Article 9 of the Uniform Commercial Code; and a court may order that amounts arising from storm-recovery property be transferred to a separate account for the financing parties’ benefit, to which their lien and security interest shall apply. On application by or on behalf of the financing parties to a circuit court of this state, such court shall order the sequestration and payment to the financing parties of revenues arising from the storm-recovery property.
7. The interest of a pledgee of an interest or any rights in any storm-recovery property is not perfected until filing as provided in subparagraph 4.
8. The priority of the conflicting interests of pledgees in the same interest or rights in any storm-recovery property is determined as follows:
a. Conflicting perfected interests or rights of pledgees rank according to priority in time of perfection. Priority dates from the time a filing covering the interest or right is made in accordance with this paragraph.
b. A perfected interest or right of a pledgee has priority over a conflicting unperfected interest or right of a pledgee.
c. A perfected interest or right of a pledgee has priority over a person who becomes a lien creditor after the perfection of such pledgee’s interest or right.
(c) The sale, assignment, or transfer of storm-recovery property is governed by this paragraph. All of the following apply to a sale, assignment, or transfer under this paragraph:
1. The sale, conveyance, assignment, or other transfer of storm-recovery property by an electric utility to an assignee that the parties have in the governing documentation expressly stated to be a sale or other absolute transfer is an absolute transfer and true sale of, and not a pledge of or secured transaction relating to, the transferor’s right, title, and interest in, to, and under the storm-recovery property, other than for federal and state income and franchise tax purposes. After such a transaction, the storm-recovery property is not subject to any claims of the transferor or the transferor’s creditors, other than creditors holding a prior security interest in the storm-recovery property perfected under paragraph (b).
2. The characterization of the sale, conveyance, assignment, or other transfer as a true sale or other absolute transfer under subparagraph 1. and the corresponding characterization of the transferee’s property interest is not affected by:
a. Commingling of amounts arising with respect to the storm-recovery property with other amounts.
b. The retention by the transferor of a partial or residual interest, including an equity interest, in the storm-recovery property, whether direct or indirect, or whether subordinate or otherwise.
c. Any recourse that the transferee may have against the transferor other than any such recourse created, contingent upon, or otherwise occurring or resulting from one or more of the transferor’s customers’ inability to timely pay all or a portion of the storm-recovery charge.
d. Any indemnifications, obligations, or repurchase rights made or provided by the transferor, other than indemnity or repurchase rights based solely upon a transferor’s customers’ inability to timely pay all or a portion of the storm-recovery charge.
e. The responsibility of the transferor to collect storm-recovery charges.
f. The treatment of the sale, conveyance, assignment, or other transfer for tax, financial reporting, or other purposes.
g. Granting or providing to holders of the storm-recovery bonds a preferred right to the storm-recovery property or credit enhancement by the electric utility or its affiliates with respect to the storm-recovery bonds.
3. Any right that an electric utility has in the storm-recovery property prior to its pledge, sale, or transfer or any other right created under this section or created in the financing order and assignable under this section or assignable pursuant to a financing order shall be property in the form of a contract right. Transfer of an interest in storm-recovery property to an assignee is enforceable only upon the later of the issuance of a financing order, the execution and delivery of transfer documents to the assignee in connection with the issuance of storm-recovery bonds, and the receipt of value. An enforceable transfer of an interest in storm-recovery property to an assignee shall be perfected against all third parties, including subsequent judicial or other lien creditors, when a notice of that transfer has been given by the filing of a financing statement in accordance with subparagraph 4. The transfer shall be perfected against third parties as of the date of filing.
4. Financing statements required to be filed under this section shall be maintained and indexed in the same manner and in the same system of records maintained for the filing of financing statements in the Florida Secured Transaction Registry under Article 9 of the Uniform Commercial Code. The filing of such a financing statement shall be the only method of perfecting a transfer of storm-recovery property.
5. The priority of a transfer perfected under this section is not impaired by any later modification of the financing order or storm-recovery property or by the commingling of funds arising from storm-recovery property with other funds, and any other security interest that may apply to those funds shall be terminated when they are transferred to a segregated account for the assignee or a financing party. If storm-recovery property has been transferred to an assignee or financing party, any proceeds of that property shall be held in trust for the assignee or financing party.
6. The priority of the conflicting interests of assignees in the same interest or rights in any storm-recovery property is determined as follows:
a. Conflicting perfected interests or rights of assignees rank according to priority in time of perfection. Priority dates from the time a filing covering the transfer is made in accordance with subparagraph 4.
b. A perfected interest or right of an assignee has priority over a conflicting unperfected interest or right of an assignee.
c. A perfected interest or right of an assignee has priority over a person who becomes a lien creditor after the perfection of such assignee’s interest or right.
(6) DESCRIPTION OR INDICATION OF PROPERTY.—The description of storm-recovery property being transferred to an assignee in any sale agreement, purchase agreement, or other transfer agreement, granted or pledged to a pledgee in any security agreement, pledge agreement, or other security document, or indicated in any financing statement is only sufficient if such description or indication describes the financing order that created the storm-recovery property and states that such agreement or financing statement covers all or part of such property described in such financing order. This subsection applies to all purported transfers of, and all purported grants or liens or security interests in, storm-recovery property, regardless of whether the related sale agreement, purchase agreement, other transfer agreement, security agreement, pledge agreement, or other security document was entered into, or any financing statement was filed, before or after the effective date of this section.
(7) FINANCING STATEMENTS.—All financing statements referenced in this section shall be subject to Part 5 of Article 9 of the Uniform Commercial Code except that the requirement as to continuation statements shall not apply.
(8) CHOICE OF LAW.—The law governing the validity, enforceability, attachment, perfection, priority, and exercise of remedies with respect to the transfer of an interest or right or the pledge or creation of a security interest in any storm-recovery property shall be the laws of this state, and exclusively, the laws of this section.
(9) STORM-RECOVERY BONDS NOT PUBLIC DEBT.—The state or its political subdivisions are not liable on any storm-recovery bonds, and the bonds are not a debt or a general obligation of the state or any of its political subdivisions, agencies, or instrumentalities. An issue of storm-recovery bonds does not, directly or indirectly or contingently, obligate the state or any agency, political subdivision, or instrumentality of the state to levy any tax or make any appropriation for payment of the bonds, other than in their capacity as consumers of electricity. This subsection shall in no way preclude bond guarantees or enhancements pursuant to this section. All bonds must contain on the face thereof a statement to the following effect: “Neither the full faith and credit nor the taxing power of the State of Florida is pledged to the payment of the principal of, or interest on, this bond.”
(10) STORM-RECOVERY BONDS AS LEGAL INVESTMENTS WITH RESPECT TO INVESTORS THAT REQUIRE STATUTORY AUTHORITY REGARDING LEGAL INVESTMENT.—The following entities may legally invest any sinking funds, moneys, or other funds belonging to them or under their control in storm-recovery bonds:
(a) The state, the investment board, municipal corporations, political subdivisions, public bodies, and public officers except for members of the commission.
(b) Banks and bankers, savings and loan associations, credit unions, trust companies, savings banks and institutions, investment companies, insurance companies, insurance associations, and other persons carrying on a banking or insurance business.
(c) Personal representatives, guardians, trustees, and other fiduciaries.
(d) All other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature.
(11) STATE PLEDGE.—
(a) For purposes of this subsection, the term “bondholder” means a person who holds a storm-recovery bond.
(b) The state pledges to and agrees with bondholders, the owners of the storm-recovery property, and other financing parties that the state will not:
1. Alter the provisions of this section which make the storm-recovery charges imposed by a financing order irrevocable, binding, and nonbypassable charges;
2. Take or permit any action that impairs or would impair the value of storm-recovery property; or
3. Except as allowed under this section, reduce, alter, or impair storm-recovery charges that are to be imposed, collected, and remitted for the benefit of the bondholders and other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related storm-recovery bonds have been paid and performed in full.
Nothing in this paragraph shall preclude limitation or alteration if full compensation is made by law for the full protection of the storm-recovery charges collected pursuant to a financing order and of the holders of storm-recovery bonds and any assignee or financing party entering into a contract with the electric utility.
(c) Any person or entity that issues storm-recovery bonds may include the pledge specified in paragraph (b) in the bonds and related documentation.
(12) NOT AN ELECTRIC UTILITY.—An assignee or financing party shall not be considered an electric utility or person providing electric service by virtue of engaging in the transactions described in this section.
(13) CONFLICTS.—In the event of conflict between this section and any other law regarding the attachment, assignment, or perfection, or the effect of perfection, or priority of, assignment or transfer of, or security interest in storm-recovery property, this section shall govern to the extent of the conflict.
(14) EFFECT OF INVALIDITY ON ACTIONS.—Effective on the date that storm-recovery bonds are first issued under this section, if any provision of this section is held to be invalid or is invalidated, superseded, replaced, repealed, or expires for any reason, that occurrence shall not affect the validity of any action allowed under this section which is taken by an electric utility, an assignee, a financing party, a collection agent, or a party to an ancillary agreement; and any such action shall remain in full force and effect with respect to all storm-recovery bonds issued or authorized in a financing order to be issued under this section prior to the date that such provision is held to be invalid or is invalidated, superseded, replaced, or repealed, or that expires for any reason.
(15) PENALTIES.—A violation of this section or of a financing order issued under this section subjects the utility that obtained the order to penalties under s. 366.095 and to any other penalties or remedies that the commission determines are necessary to achieve the intent of this section and the intent and terms of the financing order and to prevent any increase in financial impact to the utility’s ratepayers above that set forth in the financing order. If the commission orders a penalty or a remedy for a violation, the monetary penalty or remedy and the costs of defending against the proposed penalty or remedy may not be recovered from the ratepayers. The commission may not make adjustments to storm-recovery charges for any such penalties or remedies.
History.—s. 1, ch. 2005-107.
366.83 Certain laws not applicable; saving clause.—No utility shall be held liable for the acts or omissions of any person in implementing or attempting to implement those measures found cost-effective by, or recommended as a result of, an energy audit. The findings and recommendations of an energy audit shall not be construed to be a warranty or guarantee of any kind, nor shall such findings or recommendations subject the utility to liability of any kind. Nothing in ss. 366.80-366.83 and 403.519 shall preempt or affect litigation pending on June 5, 1980, nor shall ss. 366.80-366.83 and 403.519 preempt federal law unless such preemption is expressly authorized by federal statute.
History.—s. 5, ch. 80-65; s. 2, ch. 81-318; ss. 20, 22, ch. 89-292; s. 4, ch. 91-429; s. 71, ch. 2014-17.
366.91 Renewable energy.—
(1) The Legislature finds that it is in the public interest to promote the development of renewable energy resources in this state. Renewable energy resources have the potential to help diversify fuel types to meet Florida’s growing dependency on natural gas for electric production, minimize the volatility of fuel costs, encourage investment within the state, improve environmental conditions, and make Florida a leader in new and innovative technologies.
(2) As used in this section, the term:
(a) “Biogas” means a mixture of gases produced by the biological decomposition of organic materials which is largely comprised of carbon dioxide, hydrocarbons, and methane gas.
(b) “Biomass” means a power source that is comprised of, but not limited to, combustible residues or gases from forest products manufacturing, waste, byproducts, or products from agricultural and orchard crops, waste or coproducts from livestock and poultry operations, waste or byproducts from food processing, urban wood waste, municipal solid waste, municipal liquid waste treatment operations, and landfill gas.
(c) “Customer-owned renewable generation” means an electric generating system located on a customer’s premises that is primarily intended to offset part or all of the customer’s electricity requirements with renewable energy.
(d) “Net metering” means a metering and billing methodology whereby customer-owned renewable generation is allowed to offset the customer’s electricity consumption on site.
(e) “Renewable energy” means electrical energy produced from a method that uses one or more of the following fuels or energy sources: hydrogen produced or resulting from sources other than fossil fuels, biomass, solar energy, geothermal energy, wind energy, ocean energy, and hydroelectric power. The term includes the alternative energy resource, waste heat, from sulfuric acid manufacturing operations and electrical energy produced using pipeline-quality synthetic gas produced from waste petroleum coke with carbon capture and sequestration.
(f) “Renewable natural gas” means anaerobically generated biogas, landfill gas, or wastewater treatment gas refined to a methane content of 90 percent or greater which may be used as a transportation fuel or for electric generation or is of a quality capable of being injected into a natural gas pipeline.
(3) On or before January 1, 2006, each public utility must continuously offer a purchase contract to producers of renewable energy. The commission shall establish requirements relating to the purchase of capacity and energy by public utilities from renewable energy producers and may adopt rules to administer this section. The contract shall contain payment provisions for energy and capacity which are based upon the utility’s full avoided costs, as defined in s. 366.051; however, capacity payments are not required if, due to the operational characteristics of the renewable energy generator or the anticipated peak and off-peak availability and capacity factor of the utility’s avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years. Prudent and reasonable costs associated with a renewable energy contract shall be recovered from the ratepayers of the contracting utility, without differentiation among customer classes, through the appropriate cost-recovery clause mechanism administered by the commission.
(4) On or before January 1, 2006, each municipal electric utility and rural electric cooperative whose annual sales, as of July 1, 1993, to retail customers were greater than 2,000 gigawatt hours must continuously offer a purchase contract to producers of renewable energy containing payment provisions for energy and capacity which are based upon the utility’s or cooperative’s full avoided costs, as determined by the governing body of the municipal utility or cooperative; however, capacity payments are not required if, due to the operational characteristics of the renewable energy generator or the anticipated peak and off-peak availability and capacity factor of the utility’s avoided unit, the producer is unlikely to provide any capacity value to the utility or the electric grid during the contract term. Each contract must provide a contract term of at least 10 years.
(5) On or before January 1, 2009, each public utility shall develop a standardized interconnection agreement and net metering program for customer-owned renewable generation. The commission shall establish requirements relating to the expedited interconnection and net metering of customer-owned renewable generation by public utilities and may adopt rules to administer this section.
(6) On or before July 1, 2009, each municipal electric utility and each rural electric cooperative that sells electricity at retail shall develop a standardized interconnection agreement and net metering program for customer-owned renewable generation. Each governing authority shall establish requirements relating to the expedited interconnection and net metering of customer-owned generation. By April 1 of each year, each municipal electric utility and rural electric cooperative utility serving retail customers shall file a report with the commission detailing customer participation in the interconnection and net metering program, including, but not limited to, the number and total capacity of interconnected generating systems and the total energy net metered in the previous year.
(7) Under the provisions of subsections (5) and (6), when a utility purchases power generated from biogas produced by the anaerobic digestion of agricultural waste, including food waste or other agricultural byproducts, net metering shall be available at a single metering point or as a part of conjunctive billing of multiple points for a customer at a single location, so long as the provision of such service and its associated charges, terms, and other conditions are not reasonably projected to result in higher cost electric service to the utility’s general body of ratepayers or adversely affect the adequacy or reliability of electric service to all customers, as determined by the commission for public utilities, or as determined by the governing authority of the municipal electric utility or rural electric cooperative that serves at retail.
(8) A contracting producer of renewable energy must pay the actual costs of its interconnection with the transmission grid or distribution system.
(9) The commission may approve cost recovery by a gas public utility for contracts for the purchase of renewable natural gas in which the pricing provisions exceed the current market price of natural gas, but which are otherwise deemed reasonable and prudent by the commission.
History.—s. 1, ch. 2005-259; s. 41, ch. 2008-227; s. 16, ch. 2010-139; s. 2, ch. 2021-178.
366.92 Florida renewable energy policy.—
(1) It is the intent of the Legislature to promote the development of renewable energy; protect the economic viability of Florida’s existing renewable energy facilities; diversify the types of fuel used to generate electricity in Florida; lessen Florida’s dependence on natural gas and fuel oil for the production of electricity; minimize the volatility of fuel costs; encourage investment within the state; improve environmental conditions; and, at the same time, minimize the costs of power supply to electric utilities and their customers.
(2) As used in this section, the term:
(a) “Provider” means a “utility” as defined in s. 366.8255(1)(a).
(b) “Renewable energy” includes renewable energy and renewable natural gas as those terms are defined in s. 366.91(2).
(3) Each municipal electric utility and rural electric cooperative shall develop standards for the promotion, encouragement, and expansion of the use of renewable energy resources and energy conservation and efficiency measures. On or before April 1, annually, each municipal electric utility and electric cooperative shall submit to the commission a report that identifies such standards.
(4) Nothing in this section shall be construed to impede or impair terms and conditions of existing contracts.
(5) The commission may adopt rules to administer and implement the provisions of this section.
History.—s. 18, ch. 2006-230; s. 42, ch. 2008-227; s. 504, ch. 2011-142; s. 10, ch. 2012-117; s. 36, ch. 2018-110; s. 3, ch. 2021-178.
366.93 Cost recovery for the siting, design, licensing, and construction of nuclear and integrated gasification combined cycle power plants.—
(1) As used in this section, the term:
(a) “Cost” includes, but is not limited to, all capital investments, including rate of return, any applicable taxes, and all expenses, including operation and maintenance expenses, related to or resulting from the siting, licensing, design, construction, or operation of the nuclear power plant, including new, expanded, or relocated electrical transmission lines or facilities of any size which are necessary thereto, or of the integrated gasification combined cycle power plant.
(b) “Electric utility” or “utility” has the same meaning as that provided in s. 366.8255(1)(a).
(c) “Integrated gasification combined cycle power plant” or “plant” means an electrical power plant as defined in s. 403.503(14) which uses synthesis gas produced by integrated gasification technology.
(d) “Nuclear power plant” or “plant” means an electrical power plant as defined in s. 403.503(14) which uses nuclear materials for fuel.
(e) “Power plant” or “plant” means a nuclear power plant or an integrated gasification combined cycle power plant.
(f) “Preconstruction” is that period of time after a site, including related electrical transmission lines or facilities, has been selected through and including the date the utility completes site clearing work. Preconstruction costs must be afforded deferred accounting treatment and accrue a carrying charge equal to the utility’s allowance for funds during construction (AFUDC) rate until recovered in rates.
(2) Within 6 months after the enactment of this act, the commission shall establish, by rule, alternative cost recovery mechanisms for the recovery of costs incurred in the siting, design, licensing, and construction of a nuclear power plant, including new, expanded, or relocated electrical transmission lines and facilities that are necessary thereto, or of an integrated gasification combined cycle power plant. Such mechanisms must be designed to promote utility investment in nuclear or integrated gasification combined cycle power plants and allow for the recovery in rates of all prudently incurred costs, including, but not limited to:
(a) Recovery through the capacity cost recovery clause of any preconstruction costs.
(b) Recovery through an incremental increase in the utility’s capacity cost recovery clause rates of the carrying costs on the utility’s projected construction cost balance associated with the nuclear or integrated gasification combined cycle power plant. To encourage investment and provide certainty, associated carrying costs must be equal to the most recently approved pretax AFUDC at the time an increment of cost recovery is sought.
(3)(a) After a petition for determination of need is granted, a utility may petition the commission for cost recovery as permitted by this section and commission rules.
(b) During the time that a utility seeks to obtain a combined license from the Nuclear Regulatory Commission for a nuclear power plant or a certification for an integrated gasification combined cycle power plant, the utility may recover only costs related to, or necessary for, obtaining such licensing or certification.
(c) After a utility obtains a license or certification, it must petition the commission for approval before proceeding with preconstruction work beyond those activities necessary to obtain or maintain a license or certificate.
1. The only costs that a utility that has obtained a license or certification may recover before obtaining commission approval are those that are previously approved or necessary to maintain the license or certification.
2. In order for the commission to approve preconstruction work on a plant, it must determine that:
a. The plant remains feasible; and
b. The projected costs for the plant are reasonable.
(d) After a utility obtains approval to proceed with postlicensure or postcertification preconstruction work, it must petition the commission for approval of any preconstruction materials or equipment purchases that exceed 1 percent of the total projected cost for the project. Such petition shall be reviewed and completed in the annual Nuclear Cost Recovery Clause proceeding in which it is filed or in a separate proceeding by the utility.
(e) A utility must petition the commission for approval before beginning the construction phase.
1. The only costs that a utility that has obtained commission approval may recover before beginning construction work are those that are previously approved or necessary to maintain the license or certification.
2. In order for the commission to approve proceeding with construction on a plant, it must determine that:
a. The plant remains feasible; and
b. The projected costs for the plant are reasonable.
(f)1. If a utility has not begun construction of a plant within:
a. Ten years after the date on which the utility obtains a combined license from the Nuclear Regulatory Commission for a nuclear power plant or a certification for an integrated gasification combined cycle power plant, the utility must petition the commission to preserve the opportunity for future recovery under this section for costs relating to that plant. The commission must determine whether the utility remains intent on building the plant.
(I) If the commission finds that the utility remains intent on building the plant, the utility may continue to recover costs under this section.
(II) If the commission finds a lack of such intent, it may enter an order prohibiting recovery of any future costs relating to the plant under this section.
b. Twenty years after the date on which the utility obtains a combined license from the Nuclear Regulatory Commission for a nuclear power plant or a certification for an integrated gasification combined cycle power plant, the utility may not, under this section, recover future costs relating to that plant.
2. Consistent with subsection (4), nothing in this section shall preclude a utility from recovering the full revenue requirements of the nuclear power plant or integrated gasification combined cycle power plant in base rates upon the commercial in-service date.
3. Beginning January 1, 2014, in making its determination for any cost recovery under this paragraph, the commission may find that a utility intends to construct a nuclear or integrated gasification combined cycle power plant only if the utility proves by a preponderance of the evidence that it has committed sufficient, meaningful, and available resources to enable the project to be completed and that its intent is realistic and practical.
(4) When the nuclear or integrated gasification combined cycle power plant is placed in commercial service, the utility shall be allowed to increase its base rate charges by the projected annual revenue requirements of the nuclear or integrated gasification combined cycle power plant based on the jurisdictional annual revenue requirements of the plant for the first 12 months of operation. The rate of return on capital investments shall be calculated using the utility’s rate of return last approved by the commission prior to the commercial inservice date of the nuclear or integrated gasification combined cycle power plant. If any existing generating plant is retired as a result of operation of the nuclear or integrated gasification combined cycle power plant, the commission shall allow for the recovery, through an increase in base rate charges, of the net book value of the retired plant over a period not to exceed 5 years.
(5) The utility shall report to the commission annually the budgeted and actual costs as compared to the estimated inservice cost of the nuclear or integrated gasification combined cycle power plant provided by the utility pursuant to s. 403.519(4), until the commercial operation of the nuclear or integrated gasification combined cycle power plant. The utility shall provide such information on an annual basis following the final order by the commission approving the determination of need for the nuclear or integrated gasification combined cycle power plant, with the understanding that some costs may be higher than estimated and other costs may be lower.
(6) If the utility elects not to complete or is precluded from completing construction of the nuclear power plant, including new, expanded, or relocated electrical transmission lines or facilities necessary thereto, or of the integrated gasification combined cycle power plant, the utility shall be allowed to recover all prudent preconstruction and construction costs incurred following the commission’s issuance of a final order granting a determination of need for the nuclear power plant and electrical transmission lines and facilities necessary thereto or for the integrated gasification combined cycle power plant. The utility shall recover such costs through the capacity cost recovery clause over a period equal to the period during which the costs were incurred or 5 years, whichever is greater. The unrecovered balance during the recovery period will accrue interest at the utility’s weighted average cost of capital as reported in the commission’s earnings surveillance reporting requirement for the prior year.
History.—s. 44, ch. 2006-230; s. 54, ch. 2007-5; s. 1, ch. 2007-117; s. 43, ch. 2008-227; s. 1, ch. 2013-184.
366.94 Electric vehicle charging stations.—
(1) The provision of electric vehicle charging to the public by a nonutility is not the retail sale of electricity for the purposes of this chapter. The rates, terms, and conditions of electric vehicle charging services by a nonutility are not subject to regulation under this chapter. This section does not affect the ability of individuals, businesses, or governmental entities to acquire, install, or use an electric vehicle charger for their own vehicles.
(2) The Department of Agriculture and Consumer Services shall adopt rules to provide definitions, methods of sale, labeling requirements, and price-posting requirements for electric vehicle charging stations to allow for consistency for consumers and the industry.
(3)(a) It is unlawful for a person to stop, stand, or park a vehicle that is not capable of using an electrical recharging station within any parking space specifically designated for charging an electric vehicle.
(b) If a law enforcement officer finds a motor vehicle in violation of this subsection, the officer or specialist shall charge the operator or other person in charge of the vehicle in violation with a noncriminal traffic infraction, punishable as provided in s. 316.008(4) or s. 318.18.
History.—s. 11, ch. 2012-117; s. 72, ch. 2014-17.
366.95 Financing for certain nuclear generating asset retirement or abandonment costs.—
(1) DEFINITIONS.—As used in this section, the term:
(a) “Ancillary agreement” means any bond, insurance policy, letter of credit, reserve account, surety bond, interest rate lock or swap arrangement, hedging arrangement, liquidity or credit support arrangement, or other financial arrangement entered into in connection with nuclear asset-recovery bonds.
(b) “Assignee” means any entity, including, but not limited to, a corporation, limited liability company, partnership or limited partnership, public authority, trust, financing entity, or other legally recognized entity to which an electric utility assigns, sells, or transfers, other than as security, all or a portion of its interest in or right to nuclear asset-recovery property. The term also includes any entity to which an assignee assigns, sells, or transfers, other than as security, its interest in or right to nuclear asset-recovery property.
(c) “Commission” means the Florida Public Service Commission.
(d) “Electric utility” or “utility” has the same meaning as provided in s. 366.8255.
(e) “Financing costs” means:
1. Interest and acquisition, defeasance, or redemption premiums payable on nuclear asset-recovery bonds;
2. Any payment required under an ancillary agreement and any amount required to fund or replenish a reserve account or other accounts established under the terms of any indenture, ancillary agreement, or other financing documents pertaining to nuclear asset-recovery bonds;
3. Any other cost related to issuing, supporting, repaying, refunding, and servicing nuclear asset-recovery bonds, including, but not limited to, servicing fees, accounting and auditing fees, trustee fees, legal fees, consulting fees, financial adviser fees, administrative fees, placement and underwriting fees, capitalized interest, rating agency fees, stock exchange listing and compliance fees, security registration fees, filing fees, information technology programming costs, and any other costs necessary to otherwise ensure the timely payment of nuclear asset-recovery bonds or other amounts or charges payable in connection with the bonds, including costs related to obtaining the financing order;
4. Any taxes and license fees imposed on the revenues generated from the collection of the nuclear asset-recovery charge;
5. Any state and local taxes, franchise fees, gross receipts taxes, and other taxes or similar charges, including, but not limited to, regulatory assessment fees, in any such case whether paid, payable, or accrued; and
6. Any costs incurred by the commission for any outside consultants or counsel pursuant to subparagraph (2)(c)2.
(f) “Financing order” means an order that authorizes the issuance of nuclear asset-recovery bonds; the imposition, collection, and periodic adjustments of the nuclear asset-recovery charge; and the creation of nuclear asset-recovery property.
(g) “Financing party” means any and all of the following: holders of nuclear asset-recovery bonds and trustees, collateral agents, any party under an ancillary agreement, or any other person acting for the benefit of holders of nuclear asset-recovery bonds.
(h) “Financing statement” has the same meaning as provided in Article 9 of the Uniform Commercial Code.
(i) “Nuclear asset-recovery bonds” means bonds, debentures, notes, certificates of participation, certificates of beneficial interest, certificates of ownership, or other evidences of indebtedness or ownership that are issued by an electric utility or an assignee pursuant to a financing order, the proceeds of which are used directly or indirectly to recover, finance, or refinance commission-approved nuclear asset-recovery costs and financing costs, and that are secured by or payable from nuclear asset-recovery property. If certificates of participation or ownership are issued, references in this section to principal, interest, or premium shall be construed to refer to comparable amounts under those certificates.
(j) “Nuclear asset-recovery charge” means the amounts authorized by the commission to repay, finance, or refinance nuclear asset-recovery costs and financing costs. If determined appropriate by the commission and provided for in a financing order, such amounts are to be imposed on and be a part of all customer bills and be collected by an electric utility or its successors or assignees, or a collection agent, in full through a nonbypassable charge that is separate and apart from the electric utility’s base rates, which charge shall be paid by all existing or future customers receiving transmission or distribution service from the electric utility or its successors or assignees under commission-approved rate schedules or under special contracts, even if a customer elects to purchase electricity from an alternative electricity supplier following a fundamental change in regulation of public utilities in this state.
(k) “Nuclear asset-recovery costs” means:
1. At the option of and upon petition by the electric utility, and as approved by the commission pursuant to sub-subparagraph (2)(c)1.b., pretax costs that an electric utility has incurred or expects to incur which are caused by, associated with, or remain as a result of the early retirement or abandonment of a nuclear generating asset unit that generated electricity and is located in this state where such early retirement or abandonment is deemed to be reasonable and prudent by the commission through a final order approving a settlement or other final order issued by the commission before July 1, 2017, and where the pretax costs to be securitized exceed $750 million at the time of the filing of the petition. Costs eligible or claimed for recovery pursuant to s. 366.93 are not eligible for securitization under this section unless they were in the electric utility’s rate base and were included in base rates before retirement or abandonment.
2. Such pretax costs, where determined appropriate by the commission, include, but are not limited to, the capitalized cost of the retired or abandoned nuclear generating asset unit, other applicable capital and operating costs, accrued carrying charges, deferred expenses, reductions for applicable insurance and salvage proceeds and previously stipulated write-downs or write-offs, if any, and the costs of retiring any existing indebtedness, fees, costs, and expenses to modify existing debt agreements or for waivers or consents related to existing debt agreements.
(l) “Nuclear asset-recovery property” means:
1. All rights and interests of an electric utility or successor or assignee of the electric utility under a financing order, including the right to impose, bill, collect, and receive nuclear asset-recovery charges authorized under the financing order and to obtain periodic adjustments to such charges as provided in the financing order; or
2. All revenues, collections, claims, rights to payments, payments, money, or proceeds arising from the rights and interests specified in subparagraph 1., regardless of whether such revenues, collections, claims, rights to payment, payments, money, or proceeds are imposed, billed, received, collected, or maintained together with or commingled with other revenues, collections, rights to payment, payments, money, or proceeds.
(m) “Pledgee” means a financing party to which an electric utility or its successors or assignees mortgages, negotiates, hypothecates, pledges, or creates a security interest or lien on all or any portion of its interest in or right to nuclear asset-recovery property.
(n) “Uniform Commercial Code” has the same meaning as provided in chapters 670-680.
(2) FINANCING ORDERS.—
(a) An electric utility may petition the commission for a financing order. For each petition, the electric utility shall:
1. Describe the nuclear asset-recovery costs;
2. Indicate whether the utility proposes to finance all or a portion of the nuclear asset-recovery costs using nuclear asset-recovery bonds. If the utility proposes to finance a portion of such costs, the utility must identify the specific portion in the petition;
3. Estimate the financing costs related to the nuclear asset-recovery bonds;
4. Estimate the nuclear asset-recovery charges necessary to recover the nuclear asset-recovery costs and financing costs and the period for recovery of such costs;
5. Estimate any projected cost savings, based on current market conditions, or demonstrate how the issuance of nuclear asset-recovery bonds and the imposition of nuclear asset-recovery charges would avoid or significantly mitigate rate impacts to customers as compared with the traditional method of financing and recovering nuclear asset-recovery costs from customers;
6. Demonstrate that securitization has a significant likelihood of resulting in lower overall costs or would avoid or significantly mitigate rate impacts compared to the traditional method of cost recovery; and
7. File direct testimony supporting the petition.
(b) If an electric utility is subject to a settlement agreement that governs the type and amount of principal costs that could be included in nuclear asset-recovery costs, the electric utility must file a petition, or have filed a petition, with the commission for review and approval of those principal costs no later than 60 days before filing a petition for a financing order pursuant to this section. The commission may not authorize any such principal costs to be included or excluded, as applicable, as nuclear asset-recovery costs if such inclusion or exclusion, as applicable, of those costs would otherwise be precluded by such electric utility’s settlement agreement.
(c)1. Proceedings on a petition submitted pursuant to paragraph (a) begin with the petition by an electric utility, filed subject to the timeframe specified in paragraph (b), if applicable, and shall be disposed of in accordance with chapter 120 and applicable rules, except that this section, to the extent applicable, controls.
a. Within 7 days after the filing of a petition, the commission shall publish a case schedule, which must place the matter before the commission on an agenda that permits a commission decision no later than 120 days after the date the petition is filed.
b. No later than 135 days after the date the petition is filed, the commission shall issue a financing order or an order rejecting the petition. A party to the commission proceeding may petition the commission for reconsideration of the financing order within 5 days after the date of its issuance. The commission shall issue a financing order authorizing the financing of reasonable and prudent nuclear asset-recovery costs and financing costs if the commission finds that the issuance of the nuclear asset-recovery bonds and the imposition of nuclear asset-recovery charges authorized by the financing order have a significant likelihood of resulting in lower overall costs or would avoid or significantly mitigate rate impacts to customers as compared with the traditional method of financing and recovering nuclear asset-recovery costs. Any determination of whether nuclear asset-recovery costs are reasonable and prudent shall be made with reference to the general public interest and in accordance with paragraph (b), if applicable.
2. In a financing order issued to an electric utility, the commission shall:
a. Except as provided in sub-subparagraph d. and subparagraph 4., specify the amount of nuclear asset-recovery costs to be financed using nuclear asset-recovery bonds, taking into consideration, to the extent the commission deems appropriate, any other methods used to recover these costs. The commission shall describe and estimate the amount of financing costs which may be recovered through nuclear asset-recovery charges and specify the period over which such costs may be recovered. Any such determination as to the overall time period for cost recovery must be consistent with a settlement agreement, if any, under paragraph (b);
b. Determine if the proposed structuring, expected pricing, and financing costs of the nuclear asset-recovery bonds have a significant likelihood of resulting in lower overall costs or would avoid or significantly mitigate rate impacts to customers as compared with the traditional method of financing and recovering nuclear asset-recovery costs. A financing order must provide detailed findings of fact addressing cost-effectiveness and associated rate impacts upon retail customers and retail customer classes;
c. Require, for the period specified pursuant to sub-subparagraph a., that the imposition and collection of nuclear asset-recovery charges authorized under a financing order be nonbypassable and paid by all existing and future customers receiving transmission or distribution service from the electric utility or its successors or assignees under commission-approved rate schedules or under special contracts, even if a customer elects to purchase electricity from an alternative electric supplier following a fundamental change in regulation of public utilities in this state;
d. Include a formula-based true-up mechanism for making expeditious periodic adjustments in the nuclear asset-recovery charges that customers are required to pay pursuant to the financing order and for making any adjustments that are necessary to correct for any overcollection or undercollection of the charges or to otherwise ensure the timely payment of nuclear asset-recovery bonds and financing costs and other required amounts and charges payable in connection with the nuclear asset-recovery bonds;
e. Specify the nuclear asset-recovery property that is, or shall be, created in favor of an electric utility or its successors or assignees and that shall be used to pay or secure nuclear asset-recovery bonds and all financing costs;
f. Specify the degree of flexibility to be afforded to the electric utility in establishing the terms and conditions of the nuclear asset-recovery bonds, including, but not limited to, repayment schedules, expected interest rates, and other financing costs consistent with sub-subparagraphs a.-e.;
g. Require nuclear asset-recovery charges to be allocated to the customer classes using the criteria set out in s. 366.06(1), in the manner in which these costs or their equivalent was allocated in the cost-of-service study that was approved in connection with the electric utility’s last rate case and that is in effect during the nuclear asset-recovery charge annual billing period. If the electric utility’s last rate case was resolved by a settlement agreement, the cost-of-service methodology that was adopted in the settlement agreement in that case and that is in effect during the nuclear asset-recovery charge annual billing period shall be used;
h. Require, after the final terms of an issuance of nuclear asset-recovery bonds have been established and before the issuance of nuclear asset-recovery bonds, that the electric utility determine the resulting initial nuclear asset-recovery charge in accordance with the financing order and that such initial nuclear asset-recovery charge be final and effective upon the issuance of such nuclear asset-recovery bonds without further commission action so long as the nuclear asset-recovery charge is consistent with the financing order; and
i. Include any other conditions that the commission considers appropriate and that are authorized by this section.
In performing the responsibilities of this subparagraph and subparagraph 5., the commission may engage outside consultants and counsel. All expenses associated with such services shall be included as part of financing costs and included in the nuclear asset-recovery charge.
3. A financing order issued to an electric utility may provide that creation of the electric utility’s nuclear asset-recovery property pursuant to sub-subparagraph 2.e. is conditioned upon, and simultaneous with, the sale or other transfer of the nuclear asset-recovery property to an assignee and the pledge of the nuclear asset-recovery property to secure nuclear asset-recovery bonds.
4. If the commission issues a financing order and nuclear asset-recovery bonds are issued, the electric utility or assignee must file with the commission at least biannually a petition or a letter applying the formula-based true-up mechanism pursuant to sub-subparagraph 2.d. and, based on estimates of consumption for each rate class and other mathematical factors, requesting administrative approval to make the adjustments described in sub-subparagraph 2.d. The review of such a request is limited to determining whether there is any mathematical error in the application of the formula-based mechanism relating to the amount of any overcollection or undercollection of nuclear asset-recovery charges and the amount of any adjustment. Such adjustments shall ensure the recovery of revenues sufficient to provide for the timely payment of principal, interest, acquisition, defeasance, financing costs, or redemption premium and other fees, costs, and charges relating to nuclear asset-recovery bonds approved under the financing order. Within 60 days after receiving an electric utility’s request pursuant to this paragraph, the commission must approve the request or inform the electric utility of any mathematical errors in its calculation. If the commission informs the utility of mathematical errors in its calculation, the utility may correct the error and refile the request. The timeframes previously described in this paragraph apply to a refiled request.
5. Within 120 days after the issuance of nuclear asset-recovery bonds, the electric utility shall file with the commission information on the actual costs of the nuclear asset-recovery bonds issuance. The commission shall review, on a reasonably comparable basis, such information to determine if such costs incurred in the issuance of the bonds resulted in the lowest overall costs that were reasonably consistent with market conditions at the time of the issuance and the terms of the financing order. The commission may disallow all incremental issuance costs in excess of the lowest overall costs by requiring the electric utility to make a credit to the capacity cost recovery clause in an amount equal to the excess of actual issuance costs incurred, and paid for out of nuclear asset-recovery bonds proceeds, and the lowest overall issuance costs as determined by the commission. The commission may not make adjustments to the nuclear asset-recovery charges for any such excess issuance costs.
6. Subsequent to the transfer of nuclear asset-recovery property to an assignee or the issuance of nuclear asset-recovery bonds authorized thereby, whichever is earlier, a financing order is irrevocable and, except as provided in subparagraph 4. and paragraph (d), the commission may not amend, modify, or terminate the financing order by any subsequent action or reduce, impair, postpone, terminate, or otherwise adjust nuclear asset-recovery charges approved in the financing order. After the issuance of a financing order, the electric utility retains sole discretion regarding whether to assign, sell, or otherwise transfer nuclear asset-recovery property or to cause nuclear asset-recovery bonds to be issued, including the right to defer or postpone such assignment, sale, transfer, or issuance. If the electric utility decides not to cause nuclear asset-recovery bonds to be issued, the electric utility may not recover financing costs, as defined in paragraph (1)(e), from customers.
(d) At the request of an electric utility, the commission may commence a proceeding and issue a subsequent financing order that provides for refinancing, retiring, or refunding nuclear asset-recovery bonds issued pursuant to the original financing order if the commission finds that the subsequent financing order satisfies all of the criteria specified in paragraph (c). Effective upon retirement of the refunded nuclear asset-recovery bonds and the issuance of new nuclear asset-recovery bonds, the commission shall adjust the related nuclear asset-recovery charges accordingly.
(e) Within 30 days after the commission issues a financing order or a decision denying a request for reconsideration or, if the request for reconsideration is granted, within 30 days after the commission issues its decision on reconsideration, an adversely affected party may petition for judicial review in the Florida Supreme Court. The petition for review must be served upon the executive director of the commission personally or by service at the office of the commission. Review on appeal shall be based solely on the record before the commission and briefs to the court and is limited to determining whether the financing order, or the order on reconsideration, conforms to the State Constitution and state and federal law and is within the authority of the commission under this section. Inasmuch as delay in the determination of the appeal of a financing order will delay the issuance of nuclear asset-recovery bonds, thereby diminishing savings to customers which might be achieved if such nuclear asset-recovery bonds were issued as contemplated by a financing order, the Florida Supreme Court shall proceed to hear and determine the action as expeditiously as practicable and give the action precedence over other matters not accorded similar precedence by law.
(f)1. A financing order remains in effect and all such nuclear asset-recovery property continues to exist until nuclear asset-recovery bonds issued pursuant to the financing order have been paid in full and all commission-approved financing costs of such nuclear asset-recovery bonds have been recovered in full.
2. A financing order issued to an electric utility remains in effect and unabated notwithstanding the reorganization, bankruptcy or other insolvency proceedings, merger, or sale of the electric utility or its successors or assignees.
(3) EXCEPTIONS TO COMMISSION JURISDICTION.—
(a) If the commission issues a financing order to an electric utility pursuant to this section, the commission may not, in exercising its powers and carrying out its duties regarding any matter within its authority pursuant to this chapter, consider the nuclear asset-recovery bonds issued pursuant to the financing order to be the debt of the electric utility other than for federal income tax purposes, consider the nuclear asset-recovery charges paid under the financing order to be the revenue of the electric utility for any purpose, or consider the nuclear asset-recovery costs or financing costs specified in the financing order to be the costs of the electric utility, nor may the commission determine any action taken by an electric utility which is consistent with the financing order to be unjust or unreasonable.
(b) The commission may not order or otherwise directly or indirectly require an electric utility to use nuclear asset-recovery bonds to finance any project, addition, plant, facility, extension, capital improvement, equipment, or any other expenditure, unless that expenditure is a nuclear asset-recovery cost and the electric utility has filed a petition pursuant to paragraph (2)(a) to finance such expenditure using nuclear asset-recovery bonds. The commission may not refuse to allow an electric utility to recover nuclear asset-recovery costs in an otherwise permissible fashion, or refuse or condition authorization or approval pursuant to s. 366.04 of the issuance and sale by an electric utility of securities or the assumption by the utility of liabilities or obligations, solely because of the potential availability of nuclear asset-recovery cost financing.
(4) ELECTRIC UTILITY DUTIES.—The electric bills of an electric utility that has obtained a financing order and caused nuclear asset-recovery bonds to be issued must:
(a) Explicitly reflect that a portion of the charges on such bill represents nuclear asset-recovery charges approved in a financing order issued to the electric utility and, if the nuclear asset-recovery property has been transferred to an assignee, must include a statement to the effect that the assignee is the owner of the rights to nuclear asset-recovery charges and that the electric utility or other entity, if applicable, is acting as a collection agent or servicer for the assignee. The tariff applicable to customers must indicate the nuclear asset-recovery charge and the ownership of that charge.
(b) Include the nuclear asset-recovery charge on each customer’s bill as a separate line item titled “Asset Securitization Charge” and include both the rate and the amount of the charge on each bill.
The failure of an electric utility to comply with this subsection does not invalidate, impair, or affect any financing order, nuclear asset-recovery property, nuclear asset-recovery charge, or nuclear asset-recovery bonds, but does subject the electric utility to penalties under s. 366.095.
(5) NUCLEAR ASSET-RECOVERY PROPERTY.—
(a)1. All nuclear asset-recovery property that is specified in a financing order constitutes an existing, present property right or interest therein, notwithstanding that the imposition and collection of nuclear asset-recovery charges depends on the electric utility, to which the financing order is issued, performing its servicing functions relating to the collection of nuclear asset-recovery charges and on future electricity consumption. Such property exists regardless of whether the revenues or proceeds arising from the property have been billed, have accrued, or have been collected and notwithstanding the fact that the value or amount of the property is dependent on the future provision of service to customers by the electric utility or its successors or assignees.
2. Nuclear asset-recovery property specified in a financing order exists until nuclear asset-recovery bonds issued pursuant to the financing order are paid in full and all financing costs and other costs of such nuclear asset-recovery bonds have been recovered in full.
3. All or any portion of nuclear asset-recovery property specified in a financing order issued to an electric utility may be transferred, sold, conveyed, or assigned to a successor or assignee, that is wholly owned, directly or indirectly, by the electric utility, created for the limited purpose of acquiring, owning, or administering nuclear asset-recovery property or issuing nuclear asset-recovery bonds under the financing order. All or any portion of nuclear asset-recovery property may be pledged to secure nuclear asset-recovery bonds issued pursuant to the financing order, amounts payable to financing parties and to counterparties under any ancillary agreements, and other financing costs. Each such transfer, sale, conveyance, assignment, or pledge by an electric utility or affiliate of an electric utility is considered to be a transaction in the ordinary course of business.
4. If an electric utility defaults on any required payment of charges arising from nuclear asset-recovery property specified in a financing order, a court, upon application by an interested party, and without limiting any other remedies available to the applying party, shall order the sequestration and payment of the revenues arising from the nuclear asset-recovery property to the financing parties. Any such financing order remains in full force and effect notwithstanding any reorganization, bankruptcy, or other insolvency proceedings with respect to the electric utility or its successors or assignees.
5. The interest of a transferee, purchaser, acquirer, assignee, or pledgee in nuclear asset-recovery property specified in a financing order issued to an electric utility, and in the revenue and collections arising from that property, is not subject to setoff, counterclaim, surcharge, or defense by the electric utility or any other person or in connection with the reorganization, bankruptcy, or other insolvency of the electric utility or any other entity.
6. Any successor to an electric utility, whether pursuant to any reorganization, bankruptcy, or other insolvency proceeding or whether pursuant to any merger or acquisition, sale, or other business combination, or transfer by operation of law, as a result of electric utility restructuring or otherwise, must perform and satisfy all obligations of, and have the same rights under a financing order as, the electric utility under the financing order in the same manner and to the same extent as the electric utility, including collecting and paying to the person entitled to receive the revenues, collections, payments, or proceeds of the nuclear asset-recovery property.
(b)1. Except as provided in this section, the Uniform Commercial Code does not apply to nuclear asset-recovery property or any right, title, or interest of an electric utility or assignee described in subparagraph (1)(l)1., whether before or after the issuance of the financing order. In addition, such right, title, or interest pertaining to a financing order, including, but not limited to, the associated nuclear asset-recovery property and any revenues, collections, claims, rights to payment, payments, money, or proceeds of or arising from nuclear asset-recovery charges pursuant to such order, is not deemed proceeds of any right or interest other than in the financing order and the nuclear asset-recovery property arising from the order.
2. The creation, attachment, granting, perfection, priority, and enforcement of liens and security interests in nuclear asset-recovery property to secure nuclear asset-recovery bonds is governed solely by this section and, except to the extent provided in this section, not by the Uniform Commercial Code.
3. A valid, enforceable, and attached lien and security interest in nuclear asset-recovery property may be created only upon the later of:
a. The issuance of a financing order;
b. The execution and delivery of a security agreement with a financing party in connection with the issuance of nuclear asset-recovery bonds; or
c. The receipt of value for nuclear asset-recovery bonds.
A valid, enforceable, and attached security interest is perfected against third parties as of the date of filing of a financing statement in the Florida Secured Transaction Registry, as defined in s. 679.527, in accordance with subparagraph 4., and is thereafter a continuously perfected lien; and such security interest in the nuclear asset-recovery property and all proceeds of such nuclear asset-recovery property, regardless of whether billed, accrued, or collected, and regardless of whether deposited into a deposit account and however evidenced, has priority in accordance with subparagraph 8. and takes precedence over any subsequent judicial or other lien creditor. A continuation statement does not need to be filed to maintain such perfection.
4. Financing statements required to be filed pursuant to this section must be filed, maintained, and indexed in the same manner and in the same system of records maintained for the filing of financing statements in the Florida Secured Transaction Registry, as defined in s. 679.527. The filing of such a financing statement is the only method of perfecting a lien or security interest on nuclear asset-recovery property.
5. The priority of a lien and security interest perfected under this paragraph is not impaired by any later modification of the financing order or nuclear asset-recovery property or by the commingling of funds arising from nuclear asset-recovery property with other funds, and any other security interest that may apply to those funds is terminated as to all funds transferred to a segregated account for the benefit of an assignee or a financing party or to an assignee or financing party directly.
6. If a default or termination occurs under the terms of the nuclear asset-recovery bonds, the financing parties or their representatives may foreclose on or otherwise enforce their lien and security interest in any nuclear asset-recovery property as if they were a secured party under Article 9 of the Uniform Commercial Code; and a court may order that amounts arising from nuclear asset-recovery property be transferred to a separate account for the financing parties’ benefit, to which their lien and security interest applies. Upon application by or on behalf of the financing parties to a circuit court of this state, the court shall order the sequestration and payment to the financing parties of revenues arising from the nuclear asset-recovery property.
7. The interest of a pledgee of an interest or any rights in any nuclear asset-recovery property is not perfected until filing as provided in subparagraph 4.
8. The priority of the conflicting interests of pledgees in the same interest or rights in any nuclear asset-recovery property is determined as follows:
a. Conflicting perfected interests or rights of pledgees rank according to priority in time of perfection. Priority dates from the time a filing covering the interest or right is made in accordance with this paragraph.
b. A perfected interest or right of a pledgee has priority over a conflicting unperfected interest or right of a pledgee.
c. A perfected interest or right of a pledgee has priority over a person who becomes a lien creditor after the perfection of such pledgee’s interest or right.
(c) The sale, assignment, or transfer of nuclear asset-recovery property is governed by this paragraph. All of the following apply to a sale, assignment, or transfer under this paragraph:
1. The sale, conveyance, assignment, or other transfer of nuclear asset-recovery property by an electric utility to an assignee that the parties have in the governing documentation expressly stated to be a sale or other absolute transfer is an absolute transfer and true sale of, and not a pledge of or secured transaction relating to, the transferor’s right, title, and interest in, to, and under the nuclear asset-recovery property, other than for federal and state income and franchise tax purposes. After such a transaction, the nuclear asset-recovery property is not subject to any claims of the transferor or the transferor’s creditors, other than creditors holding a prior security interest in the nuclear asset-recovery property perfected under paragraph (b).
2. The characterization of the sale, conveyance, assignment, or other transfer as a true sale or other absolute transfer under subparagraph 1. and the corresponding characterization of the transferee’s property interest are not affected by:
a. Commingling of amounts arising with respect to the nuclear asset-recovery property with other amounts;
b. The retention by the transferor of a partial or residual interest, including an equity interest, in the nuclear asset-recovery property, whether direct or indirect, or whether subordinate or otherwise;
c. Any recourse that the transferee may have against the transferor other than any such recourse created, contingent upon, or otherwise occurring or resulting from one or more of the transferor’s customers’ inability or failure to timely pay all or a portion of the nuclear asset-recovery charge;
d. Any indemnifications, obligations, or repurchase rights made or provided by the transferor, other than indemnity or repurchase rights based solely upon a transferor’s customers’ inability or failure to timely pay all or a portion of the nuclear asset-recovery charge;
e. The responsibility of the transferor to collect nuclear asset-recovery charges;
f. The treatment of the sale, conveyance, assignment, or other transfer for tax, financial reporting, or other purposes; or
g. The granting or providing to holders of nuclear asset-recovery bonds a preferred right to the nuclear asset-recovery property or credit enhancement by the electric utility or its affiliates with respect to such nuclear asset-recovery bonds.
3. Any right that an electric utility has in the nuclear asset-recovery property before its pledge, sale, or transfer or any other right created under this section or created in the financing order and assignable under this section or assignable pursuant to a financing order is property in the form of a contract right. Transfer of an interest in nuclear asset-recovery property to an assignee is enforceable only upon the later of the issuance of a financing order, the execution and delivery of transfer documents to the assignee in connection with the issuance of nuclear asset-recovery bonds, and the receipt of value. An enforceable transfer of an interest in nuclear asset-recovery property to an assignee is perfected against all third parties, including subsequent judicial or other lien creditors, when a notice of that transfer has been given by the filing of a financing statement in accordance with subparagraph (b)4. The transfer is perfected against third parties as of the date of filing.
4. Financing statements required to be filed under this section must be maintained and indexed in the same manner and in the same system of records maintained for the filing of financing statements in the Florida Secured Transaction Registry, as defined in s. 679.527. The filing of such a financing statement is the only method of perfecting a transfer of nuclear asset-recovery property.
5. The priority of a transfer perfected under this section is not impaired by any later modification of the financing order or nuclear asset-recovery property or by the commingling of funds arising from nuclear asset-recovery property with other funds. Any other security interest that may apply to those funds, other than a security interest perfected under paragraph (b), is terminated when they are transferred to a segregated account for the assignee or a financing party. If nuclear asset-recovery property has been transferred to an assignee or financing party, any proceeds of that property must be held in trust for the assignee or financing party.
6. The priority of the conflicting interests of assignees in the same interest or rights in any nuclear asset-recovery property is determined as follows:
a. Conflicting perfected interests or rights of assignees rank according to priority in time of perfection. Priority dates from the time a filing covering the transfer is made in accordance with subparagraph (b)4.
b. A perfected interest or right of an assignee has priority over a conflicting unperfected interest or right of an assignee.
c. A perfected interest or right of an assignee has priority over a person who becomes a lien creditor after the perfection of such assignee’s interest or right.
(6) DESCRIPTION OR INDICATION OF PROPERTY.—The description of nuclear asset-recovery property being transferred to an assignee in any sale agreement, purchase agreement, or other transfer agreement, granted or pledged to a pledgee in any security agreement, pledge agreement, or other security document, or indicated in any financing statement is only sufficient if such description or indication describes the financing order that created the nuclear asset-recovery property and states that such agreement or financing statement covers all or part of such property described in such financing order. This subsection applies to all purported transfers of, and all purported grants or liens or security interests in, nuclear asset-recovery property, regardless of whether the related sale agreement, purchase agreement, other transfer agreement, security agreement, pledge agreement, or other security document was entered into, or any financing statement was filed, before or after the effective date of this section.
(7) FINANCING STATEMENTS.—All financing statements referenced in this section are subject to Part 5 of Article 9 of the Uniform Commercial Code, except that the requirement as to continuation statements does not apply.
(8) CHOICE OF LAW.—The law governing the validity, enforceability, attachment, perfection, priority, and exercise of remedies with respect to the transfer of an interest or right or the pledge or creation of a security interest in any nuclear asset-recovery property shall be the laws of this state, and exclusively, the laws of this section.
(9) NUCLEAR ASSET-RECOVERY BONDS NOT PUBLIC DEBT.—The state or its political subdivisions are not liable on any nuclear asset-recovery bonds, and the bonds are not a debt or a general obligation of the state or any of its political subdivisions, agencies, or instrumentalities. An issue of nuclear asset-recovery bonds does not, directly, indirectly, or contingently obligate the state or any agency, political subdivision, or instrumentality of the state to levy any tax or make any appropriation for payment of the nuclear asset-recovery bonds, other than in their capacity as consumers of electricity. This subsection does not preclude bond guarantees or enhancements pursuant to this section. All nuclear asset-recovery bonds must contain on the face thereof a statement to the following effect: “Neither the full faith and credit nor the taxing power of the State of Florida is pledged to the payment of the principal of, or interest on, this bond.”
(10) NUCLEAR ASSET-RECOVERY BONDS AS LEGAL INVESTMENTS WITH RESPECT TO INVESTORS THAT REQUIRE STATUTORY AUTHORITY REGARDING LEGAL INVESTMENT.—All of the following entities may legally invest any sinking funds, moneys, or other funds belonging to them or under their control in nuclear asset-recovery bonds:
(a) The state, the investment board, municipal corporations, political subdivisions, public bodies, and public officers, except for members of the commission.
(b) Banks and bankers, savings and loan associations, credit unions, trust companies, savings banks and institutions, investment companies, insurance companies, insurance associations, and other persons carrying on a banking or insurance business.
(c) Personal representatives, guardians, trustees, and other fiduciaries.
(d) All other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature.
(11) STATE PLEDGE.—
(a) For purposes of this subsection, the term “bondholder” means a person who holds a nuclear asset-recovery bond.
(b) The state pledges to and agrees with bondholders, the owners of the nuclear asset-recovery property, and other financing parties that the state will not:
1. Alter the provisions of this section which make the nuclear asset-recovery charges imposed by a financing order irrevocable, binding, and nonbypassable charges;
2. Take or permit any action that impairs or would impair the value of nuclear asset-recovery property or revises the nuclear asset-recovery costs for which recovery is authorized; or
3. Except as authorized under this section, reduce, alter, or impair nuclear asset-recovery charges that are to be imposed, collected, and remitted for the benefit of the bondholders and other financing parties until any and all principal, interest, premium, financing costs and other fees, expenses, or charges incurred, and any contracts to be performed, in connection with the related nuclear asset-recovery bonds have been paid and performed in full.
This paragraph does not preclude limitation or alteration if full compensation is made by law for the full protection of the nuclear asset-recovery charges collected pursuant to a financing order and of the holders of nuclear asset-recovery bonds and any assignee or financing party entering into a contract with the electric utility.
(c) Any person or entity that issues nuclear asset-recovery bonds may include the pledge specified in paragraph (b) in the nuclear asset-recovery bonds and related documentation.
(12) NOT AN ELECTRIC UTILITY.—An assignee or financing party is not an electric utility or person providing electric service by virtue of engaging in the transactions described in this section.
(13) CONFLICTS.—If there is a conflict between this section and any other law regarding the attachment, assignment, or perfection, or the effect of perfection, or priority of, assignment or transfer of, or security interest in nuclear asset-recovery property, this section shall govern.
(14) EFFECT OF INVALIDITY ON ACTIONS.—Effective on the date that nuclear asset-recovery bonds are first issued under this section, if any provision of this section is held invalid or is invalidated, superseded, replaced, repealed, or expires for any reason, that occurrence does not affect the validity of any action allowed under this section which is taken by an electric utility, an assignee, a financing party, a collection agent, or a party to an ancillary agreement; and any such action remains in full force and effect with respect to all nuclear asset-recovery bonds issued or authorized in a financing order issued under this section before the date that such provision is held invalid or is invalidated, superseded, replaced, or repealed, or expires for any reason.
(15) PENALTIES.—A violation of this section or of a financing order issued under this section subjects the utility that obtained the order to penalties under s. 366.095 and to any other penalties or remedies that the commission determines are necessary to achieve the intent of this section and the intent and terms of the financing order and to prevent any increase in financial impact to the utility’s customers above that set forth in the financing order. If the commission orders a penalty or a remedy for a violation, the monetary penalty or remedy and the costs of defending against the proposed penalty or remedy may not be recovered from the customers. The commission may not make adjustments to nuclear asset-recovery charges for any such penalties or remedies.
History.—s. 7, ch. 2015-129; s. 36, ch. 2016-10.
366.96 Storm protection plan cost recovery.—
(1) The Legislature finds that:
(a) During extreme weather conditions, high winds can cause vegetation and debris to blow into and damage electrical transmission and distribution facilities, resulting in power outages.
(b) A majority of the power outages that occur during extreme weather conditions in the state are caused by vegetation blown by the wind.
(c) It is in the state’s interest to strengthen electric utility infrastructure to withstand extreme weather conditions by promoting the overhead hardening of electrical transmission and distribution facilities, the undergrounding of certain electrical distribution lines, and vegetation management.
(d) Protecting and strengthening transmission and distribution electric utility infrastructure from extreme weather conditions can effectively reduce restoration costs and outage times to customers and improve overall service reliability for customers.
(e) It is in the state’s interest for each utility to mitigate restoration costs and outage times to utility customers when developing transmission and distribution storm protection plans.
(f) All customers benefit from the reduced costs of storm restoration.
(2) As used in this section, the term:
(a) “Public utility” or “utility” has the same meaning as set forth in s. 366.02(8), except that it does not include a gas utility.
(b) “Transmission and distribution storm protection plan” or “plan” means a plan for the overhead hardening and increased resilience of electric transmission and distribution facilities, undergrounding of electric distribution facilities, and vegetation management.
(c) “Transmission and distribution storm protection plan costs” means the reasonable and prudent costs to implement an approved transmission and distribution storm protection plan.
(d) “Vegetation management” means the actions a public utility takes to prevent or curtail vegetation from interfering with public utility infrastructure. The term includes, but is not limited to, the mowing of vegetation, application of herbicides, tree trimming, and removal of trees or brush near and around electric transmission and distribution facilities.
(3) Each public utility shall file, pursuant to commission rule, a transmission and distribution storm protection plan that covers the immediate 10-year planning period. Each plan must explain the systematic approach the utility will follow to achieve the objectives of reducing restoration costs and outage times associated with extreme weather events and enhancing reliability. The commission shall adopt rules to specify the elements that must be included in a utility’s filing for review of transmission and distribution storm protection plans.
(4) In its review of each transmission and distribution storm protection plan filed pursuant to this section, the commission shall consider:
(a) The extent to which the plan is expected to reduce restoration costs and outage times associated with extreme weather events and enhance reliability, including whether the plan prioritizes areas of lower reliability performance.
(b) The extent to which storm protection of transmission and distribution infrastructure is feasible, reasonable, or practical in certain areas of the utility’s service territory, including, but not limited to, flood zones and rural areas.
(c) The estimated costs and benefits to the utility and its customers of making the improvements proposed in the plan.
(d) The estimated annual rate impact resulting from implementation of the plan during the first 3 years addressed in the plan.
(5) No later than 180 days after a utility files a transmission and distribution storm protection plan that contains all of the elements required by commission rule, the commission shall determine whether it is in the public interest to approve, approve with modification, or deny the plan.
(6) At least every 3 years after approval of a utility’s transmission and distribution storm protection plan, the utility must file for commission review an updated transmission and distribution storm protection plan that addresses each element specified by commission rule. The commission shall approve, modify, or deny each updated plan pursuant to the criteria used to review the initial plan.
(7) After a utility’s transmission and distribution storm protection plan has been approved, proceeding with actions to implement the plan shall not constitute or be evidence of imprudence. The commission shall conduct an annual proceeding to determine the utility’s prudently incurred transmission and distribution storm protection plan costs and allow the utility to recover such costs through a charge separate and apart from its base rates, to be referred to as the storm protection plan cost recovery clause. If the commission determines that costs were prudently incurred, those costs will not be subject to disallowance or further prudence review except for fraud, perjury, or intentional withholding of key information by the public utility.
(8) The annual transmission and distribution storm protection plan costs may not include costs recovered through the public utility’s base rates and must be allocated to customer classes pursuant to the rate design most recently approved by the commission.
(9) If a capital expenditure is recoverable as a transmission and distribution storm protection plan cost, the public utility may recover the annual depreciation on the cost, calculated at the public utility’s current approved depreciation rates, and a return on the undepreciated balance of the costs calculated at the public utility’s weighted average cost of capital using the last approved return on equity.
(10) Beginning December 1 of the year after the first full year of implementation of a transmission and distribution storm protection plan and annually thereafter, the commission shall submit to the Governor, the President of the Senate, and the Speaker of the House of Representatives a report on the status of utilities’ storm protection activities. The report shall include, but is not limited to, identification of all storm protection activities completed or planned for completion, the actual costs and rate impacts associated with completed activities as compared to the estimated costs and rate impacts for those activities, and the estimated costs and rate impacts associated with activities planned for completion.
(11) The commission shall adopt rules to implement and administer this section and shall propose a rule for adoption as soon as practicable after the effective date of this act, but not later than October 31, 2019.
History.—s. 1, ch. 2019-158; s. 30, ch. 2022-4.
366.97 Redundant poles; transfer of ownership.—
(1) Pole owners shall provide at least 180 calendar days’ electronic or written advance notice to affected attaching entities of major hardening projects the purpose of which is to replace poles to ensure the poles meet extreme wind loading requirements. The advance hardening project notice must include:
(a) The scope of the major hardening project, to the extent determined; the locations of the affected poles; the expected start date; and the expected completion date of the major hardening project; and
(b) The date, time, and location of a field meeting for the pole owner and attaching entities to review and discuss the planned major hardening project details, including the types of replacement poles to be used. The field meeting must occur no sooner than 15 calendar days after the date of the notice and no later than 60 calendar days after the notice and, at a minimum, must include sufficient information to enable the attaching entity to locate the affected poles and identify the owner of any facilities attached to the poles.
(2)(a) An attaching entity must remove its pole attachments from a redundant pole within 180 calendar days after receipt of an electronic or a written notice from the pole owner requesting such removal. A pole owner may use a joint use notification software program to accomplish such written or electronic removal notice.
(b) If an attaching entity fails to remove a pole attachment pursuant to paragraph (a), except to the extent excused by an event of force majeure or other good cause as agreed to by the parties or as determined by the commission or its designee within 30 calendar days after the 180 calendar-day period under paragraph (a), the pole owner or its agent may transfer or relocate the pole attachment to the new pole at the noncompliant attaching entity’s expense. This subsection does not apply to an electric utility’s pole attachments. An attaching entity shall submit payment to the pole owner within 60 days after receipt of the pole owner’s invoice for transfer or relocation of the pole attachments. A pole owner may seek to enforce its right to payment under this paragraph in circuit court and, if it prevails, is entitled to prejudgment interest at the prevailing statutory rate and reasonable attorney fees and court costs. Upon receipt by the pole owner of written notice, the attaching entity that fails to comply with this subsection shall indemnify, defend, and hold harmless the pole owner and its directors, officers, agents, and employees from and against all liability, except to the extent of any finding of negligence or willful misconduct, including attorney fees and litigation costs, arising in connection with the transfer of the pole attachment from a redundant pole to a new pole by the pole owner.
(c) If a pole attachment is abandoned by an attaching entity that fails to remove or transfer its attachments in accordance with this section, the pole owner or its agent may remove the pole attachment at the noncompliant attaching entity’s expense and may sell or dispose of the pole attachment, except to the extent the attaching entity’s noncompliance is excused by an event of force majeure or other good cause as determined by the commission. An attaching entity shall submit payment to the pole owner within 60 days after receipt of the pole owner’s invoice. A pole owner may seek to enforce its right to payment under this paragraph in circuit court and, if it prevails, is entitled to prejudgment interest at the prevailing statutory rate and reasonable attorney fees and court costs. Upon receipt by the pole owner of written notice, the noncompliant attaching entity shall indemnify, defend, and hold harmless the pole owner and its directors, officers, agents, and employees from and against all liability, except to the extent of any finding of negligence or willful misconduct, including attorney fees and litigation costs, arising in connection with the removal, transfer, sale, or disposal of the pole attachments from a redundant pole by the pole owner.
(3) Upon petition by a pole owner or an attaching entity, the commission may issue orders enforcing this section which do not expressly relate to circuit court jurisdiction.
(4) This section may not be construed to do any of the following:
(a) Prevent a party at any time from entering into a voluntary agreement authorizing a pole owner to remove an attaching entity’s pole attachment. It is the intent of the Legislature to encourage parties to enter into such voluntary agreements without commission approval.
(b) Impair the contract rights of a party to a valid pole attachment agreement in existence before June 29, 2021.
History.—ss. 4, 5, ch. 2021-191.
366.98 Public utility liability arising out of emergencies and disasters.—
(1) A public utility is not liable for damages based in whole or in part on changes in the reliability, continuity, or quality of utility services which arise in any way out of an emergency or disaster, including, but not limited to, a state of emergency declared under s. 252.36. Consistent with the commission’s jurisdiction over public utility rates and service, issues relating to the sufficiency of a public utility’s disaster preparedness and response shall be resolved by the commission.
(2) This section does not create a new cause of action. In the event that there is a conflict between this section and any other section of the Florida Statutes, this section shall control.
History.—s. 10, ch. 2023-304.