[BETA] Fortnightly

The U.S. Court of Appeals for the 11th Circuit has ruled that Florida Power and Light Co. (FP&L) is protected by the state action immunity doctrine from liability to cogenerators (QFs) for alleged antitrust violations. The QFs had claimed that FP&L violated federal antitrust laws when it refused to wheel their power to offsite end users. The court also ruled that FP&L was protected against additional antitrust claims arising for opposing a QF proposal before the Florida Public Service Commission (PSC) to construct a separate transmission line to serve the offsite customers.

The dispute centered around a QF built into a new governmental center in downtown Miami by Metropolitan Dade County and TEC Cogeneration, Inc., in partnership with RRD Corp. According to the court, "fingers began to point" when the 27-megawatt (Mw) project proved unprofitable, in part as a result of low avoided-cost rates for mandated purchases by FP&L and neighboring utilities. To minimize its losses, the QF sought to force FP&L to wheel 17 Mw of excess capacity from the project to the Jackson Memorial Hospital/Civic Center. FP&L refused, claiming that the request violated the state's "self-service wheeling" rules. FP&L also opposed an alternative plan by the Dade County and the QF to build a separate line between the QF and the complex.

The court ruled that the State of Florida has an "obvious and clearly articulated policy to displace competition with regulation in the area of power generation, interconnection, and transmission." This state power in the field and the PSC's active role in regulating FP&L protected the utility from antitrust claims, the court said. In addition, related antitrust doctrines, designed to protect First Amendment rights to assemble and to petition the government, shielded the utility from complaints about its lobbying efforts against the QF's transmission-line proposal. TEC Cogeneration, Inc., et al., v. Florida Power and Light Co., __ F.3d __, Nos. 94-4323, 94-4496, Mar. 8, 1996 (11th Cir.).

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