Tec Cogeneration Inc., Rrd Corporation, As They Are Partnersin South Florida Cogeneration Associates, Thermoelectron Corporation, Rolls-royce, Inc.,plaintiffs-appellees, v. Florida Power & Light Company, Fpl Group, Inc., Fpl Energyservices, Inc., Defendants-appellants,wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr.,clark Cook, Defendants,florida Public Service Commission, Movant.tec Cogeneration Inc., Rrd Corporation, As They Are Partnersin South Florida Cogeneration Associates, Thermoelectron Corporation, Rolls-royce, Inc.,plaintiffs-appellees, v. Florida Power & Light Company, Fpl Group, Inc., Fpl Energyservices, Inc., Defendants-appellants,wayne H. Brunetti, Larry T. Atkinson, Joe C. Collier, Jr.,clark Cook, et al., Defendants, 86 F.3d 1028 (11th Cir. 1996)

Upon consideration of the appellee's suggestion for rehearing en banc, treated as a petition for rehearing by the panel, the same is granted, and the opinion filed in this case on March 8, 1996, and published at 76 F.3d 1560, is modified in one respect. The first column, consisting of three full paragraphs, 76 F.3d at 1570, is deleted, and in lieu thereof the following three paragraphs, including two footnotes, are substituted:

We agree with the district court that the issue in this case is active supervision vel non. We disagree with the district court that the PSC's supervision was insufficient. The record reflects that the PSC played an active and substantial role "in determining the specifics of the economic policy" pursued by FPL in the areas of wheeling, rates, and interconnection. See Ticor, 112 S. Ct. at 2177.

Utilities, including suppliers of electrical energy, are traditionally heavily-regulated industries. It is not unusual for them to be given monopoly positions, as in Florida, with state regulation supplanting competition as the price and economic viability control. The record in this case reflects a history of active regulation.¹  As to wheeling, after an eleven-month contested administrative proceeding, the PSC approved FPL's actions in denying the Cogenerators' wheeling request. As to rates related to cogeneration (backup, avoided cost, and interruptible), the record reflects that these rates are determined by PSC rulemaking and have been the subject of extensive and contested agency proceedings. Furthermore, the resulting rates were different from those proposed by the Cogenerators or FPL. As to interconnection, the record reflects that the PSC also conducted extensive proceedings developing detailed instructions on interconnection agreements and fixing the terms of FPL's standard interconnection agreement.² 

We readily conclude, therefore, that FPL's actions bear the affirmative and ongoing imprimatur of the state; that there is ample evidence in the record to indicate that the state, through the PSC, has played a substantial role in determining the specifics of FPL's economic policy; and, that the state has clearly exercised sufficient independent judgment and control to satisfy the active supervision prong. Id.