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From the staff of the Tampa Bay Times

Regulators reject request from more time for public's lawyers in FPL rate case

The Florida Public Service Commission offered a glimpse into how bitter, and potentially personal, the high stakes debate over Florida Power & Light's request to raise its rates $1.3 billion may become later this summer.

On Monday, the PSC voted unanimously to reject a request from the Office of Public Counsel, the lawyers who represent the public before regulators, who want more time to prepare their case.

The OPC had asked the panel to reconsider a May 4 order by hearing officer and PSC Commissioner Lisa Edgar who ruled that the public counsel would have just over four weeks - until May 31 - to file its testimony in two parts of the rate case. She gave FPL just over five weeks - until July 5 -- to file its rebuttal.

It was a timeframe that Public Counsel J.R. Kelly considered unprecedented, unworkable and unfair so, rather than file a motion with Edgar for more time, he and his staff asked for a full vote of the PSC.

It backfired.

In a 10-minute speech, Edgar called the effort "a wolf in sheep's clothing, a thinly veiled effort to force the full commission to review the pre-hearing schedule." She said that in her "eleven and a half years" on the commission she has ruled on several FPL rate cases and "timely acted upon" every request for an extension of time.

Edgar's colleagues had no sympathy for Kelly's attempt to bypass Edgar. They sided with her, voted down his request with no debate, and adjourned the meeting.

After the vote, Kelly said the short time schedule was unprecedented. He called the ruling a setback.

"The abbreviated and accelerated testimony filing dates definitely weigh against the ratepayers who we represent because it does not give us enough time to fully vet all the issues in discovery,'' Kelly said.

The decision came just days after Kelly prevailed against the PSC and FPL in a lawsuit that challenged a unanimous 2015 PSC decision that allowed the utility to charge its 4.5 million customers for its speculative gas fracking operation in Oklahoma. The Florida Supreme Court ruled that PSC had no authority to impose the charges for such activity without Legislative approval.

In March, FPL filed for the $1.3 billion rate increase, which will mean about $13 a month for a residential customer with a 1,000 kilowatt hour bill and be phased in over four years.

In April, FPL asked regulators to address three other issues related to the rate case. They asked  the commission to decide how much of their profits from selling wholesale energy they must share with customers, how much to charge customers for storm hardening and how much money the company can keep from its investment in capital assets. Since the issues all relate to FPL's bottom line, the PSC staff then asked they all be consolidated in the rate case hearings which begin Aug. 22. 

Edgar, who is the longest-serving member of the PSC, serves as the pre-hearing officer in the case, a role that allows her to serve as both umpire and rule-maker as sparring parties battle it out over which issues will be allowed to come up at the hearing.

But before those issues can be addressed, the lawyers representing the public and other parties in the case must collect data, ask questions, hire experts and investigate the record -- a process that takes the Office of Public Counsel more time than rival FPL because it must follow state contracting rules before it can hire outside consultants.

After agreeing to consolidate the cases for the August hearing, Edgar set deadlines for the parties to submit the testimony of their experts and witnesses.

She gave OPC until May 31 to submit its testimony regarding the portions of the case relating to storm hardening and company assets and gave FPL until July 5 to file its rebuttal. The testimony for the rates portion of the case would be due July 7, she said, and FPL would have until Aug. 1 to respond.

But the lawyers for the public counsel argued that because the issues are interrelated, the deadlines should not be staggered but be the same for all the issues. On May 9, it filed a motion asking the full PSC to reconsider Edgar's motion.

That clearly didn't sit well with Edgar.

"I can assure you that nobody in this room has poured over the calendar, the varying dates, the array of potential issues in consolidating this case more than I have,'' she said on Monday. She warned that approving the motion to reconsider "could potentially harm the work of this commission."

PSC Commission Chair Julie Brown asked OPC lawyer Patricia Christensen why they hadn't asked Edgar for the extension. Christensen replied, "We felt this was the best way to get before the commission."

Edgar sat with her arms folded, her chin in the air, then exchanged words with Commissioner Ron Brisé. Next, Brisé asked again why they didn't go through Edgar "and request an extension?"

Christensen answered again:  "At the time we felt that was the quickest way to get it before the full commission. That is the choice that we made."

FPL -- which asked that the three additional issues be addressed at the same time it was asking for its rate case -- and the PSC staff, both opposed giving the lawyers for the public more time. The staff noted, however, that while Edgar's ruling did not contain any "error" in law, the law did allow for the PSC to have the discretion to change the schedule if it wanted to. The commission decided it did not want to use its discretion.  

"Without a staggered schedule, FPL would have to review, seek discovery and review intervenor direct testimony covering four dockets and prepare to file its own testimony in just 25 days,'' said John Butler, FPL's lead legal counsel.

He added that FPL has already received a "a massive volume of discovery,'' from the lawyers representing all parties in the case -- the ratepayers, the state's largest industrial power users, Wal-Mart, AARP and South Florida hospitals.

After the hearing, Kelly acknowledged that he could file a motion for an extension but it may be futile. PSC rules give FPL seven days to respond, which will be the same day as their deadline.

"I don't know any prior cases where we've had that short of a time frame,'' Kelly said. "FPL gets five weeks to file rebuttal - more time than they even have in the rate case filing and that gives them an advantage."

Kelly said his office will proceed by filing "the best testimony we can and it will make the hearing process a little longer because we'll have to bear out more issues through cross-examination."

Photo: Lisa Edgar, courtesy Florida Public Service Commission

[Last modified: Monday, May 23, 2016 9:18pm]


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