Supreme Court of Florida
                                   ____________

                                   No. SC11-1830
                                   ____________

         CHOCTAWHATCHEE ELECTRIC COOPERATIVE, INC.,
                         Appellant,

                                         vs.

                          ART GRAHAM, ETC., et al.,
                                Appellees.

                                  [January 9, 2014]

LABARGA, J.

      We review a decision of the Florida Public Service Commission

(the Commission) relating to the service of a public utility providing electric

service. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. The Commission

settled a territorial dispute between two utilities: appellant Choctawhatchee

Electric Cooperative, Inc. (CHELCO), and appellee Gulf Power Company (Gulf

Power). CHELCO and Gulf Power each sought the right to provide electric

service for Freedom Walk, a proposed multi-purpose development located in

Okaloosa County. The Commission awarded Gulf Power the right to serve

Freedom Walk. For the reasons explained below, we affirm.
              FACTUAL AND PROCEDURAL BACKGROUND

      Freedom Walk is an approximately 179-acre proposed development within

the city of Crestview in Okaloosa County. The development, owned by Emerald

Coast Partners, LLC, was designated by local ordinance in 2007 as a Community

Development District. The developer’s plans for Freedom Walk include both

residential and commercial establishments.

      In 2010, CHELCO petitioned the Commission to resolve a territorial dispute

between CHELCO and Gulf Power regarding the right to provide electric service

to Freedom Walk. In 2011, the Commission held a hearing on the dispute,

following which the Commission issued its order resolving the dispute in favor of

Gulf Power. 1 In the order, the Commission concluded that because the multiple


       1. The Commission issued its order entitled “Order Resolving a Territorial
Dispute and Awarding Territory in Okaloosa County to Gulf Power Company.”
The Commission divided the order into the following sections: (I) Background;
(II) Approved Stipulations; (III) Boundaries of the Area That is the Subject of This
Territorial Dispute; (IV) Commission’s Jurisdiction to Enforce or Apply Provisions
of Chapter 425, F.S.; (V) Is Freedom Walk Development a “Rural Area” as
Defined in Section 425.03(1), F.S.; (VI) If the Freedom Walk Development Is Not
Found to be “Rural” in Nature, Is CHELCO Prohibited From Serving the Freedom
Walk Development; (VII) Nature of the Freedom Walk Development; (VIII)
Existing and Planned Load to Be Served in the Freedom Walk Development;
(IX) Necessary Facilities and Associated Costs for CHELCO to Extend Adequate
and Reliable Service to the Freedom Walk Development; (X) Necessary Facilities
and Associated Costs for Gulf to Extend Adequate and Reliable Service to the
Freedom Walk Development; (XI) Necessary Facilities and Associated Costs for
CHELCO and Gulf to Provide Adequate and Reliable Service Within the Freedom
Walk Development; (XII) Uneconomic Duplication of Existing Facilities; (XIII)
Capability of Each Utility to Provide Adequate and Reliable Electric Service to the

                                       -2-
factors it considered were substantially equal, customer preference would

determine the outcome of the dispute. The Commission concluded that customer

preference favored Gulf Power and awarded Gulf Power the right to serve

Freedom Walk. The Commission also determined that Gulf Power was entitled to

a preference as an investor-owned utility.

      On appeal, CHELCO challenges the Commission’s findings and conclusions

in four areas: (1) cost to provide service; (2) ability to provide service;

(3) uneconomic duplication of facilities; and (4) customer preference as the

determining factor. The Florida Electric Cooperatives Association (FECA) filed

an amicus brief in support of CHELCO.

                                     ANALYSIS

                                 Standard of Review

      CHELCO’s appeal of the Commission’s order invokes this Court’s

mandatory jurisdiction under article V of the Florida Constitution. Specifically,

our mandatory jurisdiction includes review of actions by the Public Service

Commission related to electric service. See art. V, § 3(b)(2), Fla. Const. As we

fulfill our constitutional obligation, we are mindful of the scope of our review, and

we afford deference to the Commission’s findings. As we have consistently



Freedom Walk Development; (XIV) Customer Preference; and (XV) Awarding of
the Right to Serve the Freedom Walk Development.


                                          -3-
observed, “[c]ommission orders come to this Court clothed with the presumption

that they are reasonable and just.” W. Fla. Elec. Coop. Ass’n v. Jacobs, 

, 1204 (Fla. 2004) (citing Gulf Coast Elec. Coop. v. Johnson, 

,

262 (Fla. 1999)). Thus, CHELCO cannot prevail on appeal unless the Commission

departed from the essential requirements of law. 

Corp. v.

Clark, 

, 477 (Fla. 1997)). We will not disturb the Commission’s

findings and conclusions if they are supported by competent substantial evidence

in the record and are not clearly erroneous. 

       We now turn to the law that applies to the Commission’s resolution of

disputes between electric utilities. The jurisdiction of the Commission is set forth

in chapter 366, Florida Statutes (2010), which governs public utilities.

Specifically, the Commission’s authority to settle territorial disputes such as the

present one between CHELCO and Gulf Power is found in section 366.04(2),

which provides that “the commission shall have power over electric utilities . . .

[t]o 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.” § 366.04(2)(e),

Fla. Stat. (2010).




                                           -4-
      When resolving territorial disputes, the Commission must be especially

mindful of its responsibility to avoid “further uneconomic duplication of

generation, transmission, and distribution facilities.” § 366.04(5), Fla. Stat. (2010).

Moreover, the Commission is guided by multiple factors that are set forth by

statute and by administrative rule. The statutory factors, which are not exclusive,

include “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.”

§ 366.04(2)(e), Fla. Stat. (2010). Additionally, rule 25-6.0441, contained in the

Florida Administrative Code, provides as follows:

             25-6.0441. Territorial Disputes for Electric Utilities
             ....
             (2) In resolving territorial disputes, the Commission may
      consider, but not be limited to consideration of:
             (a) The capability of each utility to provide reliable electric
      service within the disputed area with its existing facilities and the
      extent to which additional facilities are needed;
             (b) The nature of the disputed area including population and
      the type of utilities seeking to serve it, and degree of urbanization of
      the area and its proximity to other urban areas, and the present and
      reasonably foreseeable future requirements of the area for other utility
      services;
             (c) The cost of each utility to provide distribution and
      subtransmission facilities to the disputed area presently and in the
      future; and
             (d) Customer preference if all other factors are substantially
      equal.



                                         -5-
Fla. Admin. Code R. 25-6.0441 (2010).

                            The Freedom Walk Dispute

      Because the Commission determined that the factors it considered with

respect to CHELCO and Gulf Power were substantially equal, it relied on customer

preference to settle the dispute. CHELCO argues that certain factors were not

substantially equal and that therefore, the Commission should not have reached the

issue of customer preference. To the extent that the Commission did ultimately

rely on customer preference, CHELCO also argues that the Commission erred

when it determined that customer preference favors Gulf Power. As we evaluate

CHELCO’s claims, we stress the deference to which the Commission’s order is

entitled, and we emphasize that the Court will not substitute itself as the finder of

fact. Indeed, as we observed in Chicken ‘N’ Things v. Murray, 

,

305 (Fla. 1976), even when this Court differs with the Commission’s view as to the

effect of the evidence as a whole, an order will be upheld “so long as there is

competent substantial evidence to support the orders.” We now address

CHELCO’s claims, beginning with the factors that CHELCO argues are not

substantially equal. We then turn to the issue of customer preference.

                    Cost to Extend Service to Freedom Walk

      CHELCO challenges the Commission’s findings and conclusions related to

the two utilities’ costs to extend service to Freedom Walk. Rule 25-6.0441(2)(c) of



                                         -6-
the Florida Administrative Code provides that the Commission may consider “[t]he

costs of each utility to provide distribution and subtransmission facilities to

[Freedom Walk] presently and in the future.” As a part of this analysis, the

Commission evaluated both CHELCO’s and Gulf Power’s costs to extend service

to the Freedom Walk development.

      The Commission concluded that CHELCO would not incur any cost to

extend service to Freedom Walk apart from existing facilities and planned

upgrades, and CHELCO does not challenge that conclusion. However, CHELCO

does challenge the Commission’s findings and conclusions as to Gulf Power’s

actual cost to extend service to Freedom Walk. Moreover, CHELCO argues that

the difference in the two utilities’ costs demonstrates that those costs are not

substantially equal.

      The parties agree that in order to provide service to Freedom Walk, Gulf

Power would have to extend its existing three-phase utility line that runs along Old

Bethel Road by 2,130 feet in order to reach the Freedom Walk area. The existing

utility line would be extended at a cost of $89,738. Gulf Power offered testimony

that this line extension project is the only investment or upgrade necessary to

extend electric service to Freedom Walk that is independent of existing facilities

and planned upgrades. Ultimately, the Commission determined that $89,738 is the

total cost that Gulf Power would incur in order to extend service to Freedom Walk.



                                         -7-
      However, CHELCO contends that the Commission erred when it excluded a

$40,000 transformer upgrade cost from Gulf Power’s total cost to extend service to

Freedom Walk. The record indicates that Gulf Power planned a large substation

conversion project that would occur over the course of several years. One aspect

of the project would upgrade Gulf Power’s Airport Road substation. Although the

Airport Road substation upgrade would eventually serve Freedom Walk, the

completion of the conversion was not dependent on Gulf Power being awarded the

right to serve the development. Gulf Power estimated that the Airport Road

substation upgrade would happen between the years of 2011 and 2015. However,

in the event that the project became delayed, Gulf Power acknowledged the

possibility that it would need to upgrade three single-phase transformers at the

Airport Road substation at a cost of $40,000 in order to meet Freedom Walk’s

electricity demand.

      The Commission concluded that the $40,000 cost should not be attributed to

Gulf Power’s cost to extend service to Freedom Walk because Gulf Power would

only incur that cost if the large conversion project did not proceed as planned. The

Commission stated: “We believe that the transformer replacement project is not a

project that Gulf intends to complete, but was identified for the purposes of this

docket in order to obtain a clear picture of Gulf [Power]’s existing facilities and

how their currently planned projects would impact their ability to serve the



                                         -8-
Freedom Walk development.” In re Petition to Resolve Territorial Dispute with

Gulf Power Company in Okaloosa County by Choctawhatchee Electric

Cooperative, Inc., Docket No. 100304, Order No. PSC-11-0340-FOF-EU, 2011

Fla. Puc. Lexis 239, 

at 38 (F.P.S.C. Aug. 15, 2011) (“Order”).

The Commission reached its findings and conclusions as to Gulf Power’s actual

cost after considering extensive testimony from both parties, and we will not

disturb the Commission’s determination that $89,738 is Gulf Power’s cost to

extend service to Freedom Walk.

      CHELCO also maintains that even if Gulf Power’s cost is only $89,738,

because CHELCO would not incur any additional cost to extend service to

Freedom Walk, the Commission erred when it concluded that the two utilities’

costs were substantially equal. CHELCO contends that two of our prior cases

support its argument: Gulf Coast Elec. Coop. Inc. v. Clark, 

(Fla.

1996), and Gulf Power Co. v. Pub. Serv. Comm’n, 

(Fla. 1985).

      In Gulf Power, the earlier of the two cases, Gulf Coast Electric Cooperative

(Gulf Coast) filed a petition seeking to resolve a territorial dispute between it and

Gulf Power, as both utilities “sought to provide electrical service to [a

. After the petition was filed but before the

Commission ruled on the dispute, Gulf Power extended its utility lines a distance

of 2.2 miles in order to reach the subdivision and built a substation that would



                                         -9-
allow it to satisfy the subdivision’s anticipated power needs. 

to Gulf

Power was approximately $200,480. 

found that the cost to Gulf Coast to extend service to the

subdivision amounted to approximately $27,000, and that the reason for the

difference in the two utility providers’ costs (approximately $173,480) was the

closer proximity of Gulf Coast’s existing facilities to the subdivision. 

concluded that Gulf Power’s “relatively extravagant expenditures in

providing service” were “reckless and irresponsible” and resulted in “an

uneconomic duplication of electrical facilities.” 

Commission awarded Gulf Coast the right to provide electric service to the

subdivision. 

we rejected Gulf Power’s invitation to reweigh the

evidence and substitute our judgment for that of the Commission. 

“. . . Gulf Power’s attacks on the [Commission’s] analysis represent a thinly veiled

attempt to have this Court reweigh and reevaluate the evidence presented to the

[Commission]. This we cannot do.”).

      We subsequently compared the difference in costs in Gulf Power with the

$14,583 difference in another electric service territorial dispute and concluded that

the smaller amount was “de minimis in comparison.” 

. In

Clark, the Gulf Coast cooperative spent $14,583 to upgrade a single-phase line to a

three-phase line to enable it to provide service to a new prison. 

The



                                        - 10 -
Commission found that the upgrade was uneconomic and relied in part on this

factor in awarding competitor Gulf Power the right to serve the prison. 

This Court concluded that competent substantial evidence did not support,

among other findings, that the $14,583 difference in costs was considerable. 

said:

      Compare, for instance, the costs incurred for the upgrade in this case
      with the costs incurred in Gulf Power Co. v. Public Service
      Commission, 

(Fla. 1985) (difference between Gulf
      Coast’s $27,000 cost to provide service and Gulf Power’s $200,480
      cost to provide service found to be considerable). The cost
      differential in this case is de minimis in comparison to the cost
      differential in that case.

      We decline to simply apply the costs discussed in Gulf Power and Clark as

firm indicators for what differences in costs are de minimis and what differences

are excessive. Despite CHELCO’s reliance on these cases, we are mindful of the

highly fact-specific nature of the territorial disputes that come before the

Commission. As a result, Gulf Power and Clark do not provide a one-size-fits-all

formula for evaluating costs, nor do they mandate the conclusion that Gulf Power’s

and CHELCO’s costs to extend service to Freedom Walk are not substantially

equal. 2 Consequently, we affirm the Commission’s findings and conclusions.


       2. Moreover, even if the costs in Gulf Power and Clark provided absolute
parameters for determining whether a difference in costs is significant, the $89,738
difference at issue in this case is almost in the middle. However, by a margin of

                                        - 11 -
              Capability to Provide Adequate and Reliable Service

      CHELCO also argues that Gulf Power is not capable of providing Freedom

Walk with adequate and reliable service because it must build additional facilities

and incur the costs of doing so. Under rule 25-6.0441(2)(a), the Commission may

consider “[t]he capability of each utility to provide reliable electric service within

the disputed area with its existing facilities and the extent to which additional

facilities are needed.” Fla. Admin. Code R. 25-6.0441(2)(a) (2010).

      The Commission evaluated the overall ability of each utility to provide

Freedom Walk with adequate and reliable service and concluded that each one was

similarly capable of doing so. The Commission considered the nature of each

utility’s existing facilities and the extent to which each would need additional

facilities. We note that the language of rule 25-6.0441(2)(a) provides for the

Commission’s consideration of “the extent to which additional facilities are

needed” and find this language instructive because it highlights the Commission’s

duty to weigh the evidence in light of the facts of each dispute. 

Commission properly considered each utility’s history of

providing adequate and reliable service. The record reveals that both utilities have

provided service in the local area for decades and have responded to utility outages



$5,107, the cost in this case is actually closer to the “de minimis” $14,583 cost
differential in Clark.


                                         - 12 -
in a reasonable manner. Moreover, both utilities have adequate resources in the

vicinity. Competent substantial evidence supports the Commission’s

determination that both utilities are capable of providing adequate and reliable

service to Freedom Walk, and we will not disturb the Commission’s findings and

conclusions.

                              Uneconomic Duplication

      CHELCO also challenges the Commission’s conclusion that awarding Gulf

Power the right to serve Freedom Walk would not result in uneconomic

duplication of facilities. The Florida Legislature has emphasized the

Commission’s duty to avoid uneconomic duplication in section 366.04(5),which

provides as follows:

            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.

§ 366.04(5), Fla. Stat. (2010). We have observed that certain factors are relevant

to a determination of whether uneconomic duplication is likely to occur. These

factors, which are not exclusive, include the utilities’ costs to provide service, “lost

revenues for the non-serving utility, aesthetic and safety problems, proximity of

lines, adequacy of existing lines, whether there has been a ‘race to serve,’ and other

concerns . . .” 

. A utility’s historical presence in an area

                                         - 13 -
may also be relevant to the Commission’s analysis. W. Fla. Elec. Coop. Ass’n,

Inc. v. Jacobs, 

, 1205 (Fla. 2004).

      Not all duplication of facilities is “uneconomic.” 

duplication of facilities may occur, the duplication may nonetheless avoid being

deemed uneconomic if the difference in costs between the utilities is de minimis.

is no bright-line rule for evaluating whether a difference in

costs is de minimis, and the Commission evaluates the cost differential within the

context of other case-specific factors.

      The Commission considered whether an award to either CHELCO or Gulf

Power would result in uneconomic duplication. In doing so, the Commission

considered each utility’s existing facilities and planned upgrades. Notably, the

Commission considered that if awarded the right to serve Freedom Walk, Gulf

Power would have to extend its existing utility line and spend $89,738 to do so,

and determined that this project is solely triggered by the prospect of Gulf Power

providing electric service to Freedom Walk.

      CHELCO raises three issues relating to uneconomic duplication: (1) Gulf

Power will duplicate existing CHELCO facilities; (2) the Commission failed to

consider all elements necessary to determine whether duplication of facilities is

uneconomic; and (3) CHELCO’s historical presence is relevant to determining

uneconomic duplication. We examine each argument in turn.



                                          - 14 -
                         Duplication of CHELCO Facilities

      CHELCO argues that Gulf Power’s extension of its three-phase utility line

along Old Bethel Road will result in an uneconomic duplication of existing

CHELCO facilities. The Commission concluded that some duplication of facilities

would result if either utility was awarded the right to serve Freedom Walk:

             The record is clear that both CHELCO and Gulf have had lines
      close to the Freedom Walk development for more than 40 years.
      CHELCO’s three-phase line is on Old Bethel Road at the northern
      boundary of the development. In addition, CHELCO has a single-
      phase service line, with a 1967 easement, that previously served a
      residence within the Freedom Walk property, but unrelated to the
      development. Gulf’s three-phase line is 2,130 [feet] from the
      Freedom Walk development; however, Gulf has had a single-phase
      line within 30 feet of the eastern boundary of the development since
      1955. Further, CHELCO’s single-phase line running along Old
      Bethel Road appears to run parallel with Gulf’s three-phase line which
      serves the schools. Based on these facts, it appears that Gulf’s
      existing lines are in the immediate vicinity of CHELCO’s existing
      lines. Further, because of the close proximity of the lines, the
      provision of service to the development by either CHELCO or Gulf
      could result in a further duplication of facilities.

Order, 

at 47.

      The Commission received competent substantial evidence in the form of

witness testimony and detailed exhibits that depicted the location of each utility’s

existing lines relative to the location of Freedom Walk. CHELCO argues that the

Commission’s analysis of uneconomic duplication should not have included

CHELCO’s single-phase utility line that runs parallel to Gulf Power’s three-phase

line. CHELCO argues that the location of these utility lines is too removed from

                                        - 15 -
Freedom Walk to be relevant to the determination of uneconomic duplication.

This argument improperly asks this Court to substitute its judgment with that of the

Commission on a matter that is clearly within the Commission’s expertise. This

we will not do. The Commission determined that the locations of specific utility

lines are relevant to its analysis of uneconomic duplication; its judgment is entitled

to deference by this Court.

      CHELCO also contends that uneconomic duplication results from the

$89,738 difference in the two utilities’ costs to extend service to Freedom Walk.

CHELCO challenges the Commission’s conclusion that the $89,738 difference in

the two utilities’ costs is not significant and argues that the difference in costs is

especially egregious because, as the Commission found, CHELCO would not incur

any additional costs in order to extend service to Freedom Walk.

      The Commission considered four tests that were testified to at length by

Theodore Spangenberg, Jr., a Gulf Power witness: (1) “the magnitude of the cost to

extend facilities to the development in contrast to the total investment to serve

Freedom Walk”; (2) “the [cost of the] investment to extend service to Freedom

Walk as a percentage of the estimated annual non-fuel revenue Gulf [Power]

expects to gain from serving the development”; (3) “the ratio of total investment,

including the investment required for facilities within the disputed area, to Gulf

[Power]’s estimated annual non-fuel revenue from Freedom Walk”; and (4)



                                          - 16 -
“whether the facilities that might initially be perceived as duplicative would have a

reasonable prospect for future use in addition to just serving the area in dispute.”

The Commission concluded that each of the tests demonstrated that uneconomic

duplication would not occur if Gulf Power was awarded the right to serve Freedom

Walk.

        CHELCO contests the Commission’s reliance on the four tests. However,

the Commission’s conclusion did not solely rely on the tests. The Commission

also considered whether service by either CHELCO or Gulf Power could result in

duplication of facilities, whether each utility would be able to serve Freedom Walk

with existing facilities, whether the existing facilities will be used “regardless of

which party is approved to provide service to Freedom Walk,” and whether either

party would have a stranded investment if not awarded the right to serve Freedom

Walk. Additionally, although the Commission did not find the factor weighty as to

either party, it did take into consideration each utility’s historical presence. We

will not disturb the Commission’s findings and conclusions.

                           Evaluation of Necessary Factors

        CHELCO also argues that the Commission failed to consider all of the

necessary factors in determining whether uneconomic duplication would result

from awarding Gulf Power the right to serve Freedom Walk. We reject

CHELCO’s assertion that the Commission’s order was inadequate. Our review of



                                         - 17 -
the order revealed that in considering uneconomic duplication, the Commission

evaluated the pertinent factors. The Commission addressed the proximity of each

utility’s lines to the other’s and concluded that some duplication, but not

uneconomic duplication, would occur if either utility was awarded the right to

serve Freedom Walk. The Commission also addressed the difference in each

utility’s costs to extend service to Freedom Walk, lost revenues for the non-serving

utility, the adequacy of each utility’s existing lines, whether each utility’s existing

facilities would continue to be used regardless of which utility was awarded the

right to serve Freedom Walk, whether either utility’s upgrades and plans were

triggered by the Freedom Walk project, and whether any of the utilities’ existing

investments would become stranded if not awarded the right to serve Freedom

Walk. CHELCO’s argument is without merit.

                                  Historical Presence

      CHELCO also contends that the Commission did not give the proper weight

to CHELCO’s historical presence. This Court has observed that “[t]he historical

presence of one utility in an area thus may be relevant in determining whether

uneconomic duplication would result from an award of service to another.”

.

      CHELCO’s argument is without merit. The Commission did not overlook

historical presence; it considered the historical presence of both utilities.



                                         - 18 -
Competent substantial evidence in the record demonstrates that both Gulf Power

and CHELCO have utility lines in proximity to Freedom Walk. Moreover, each

utility has a decades-long historical presence in the area. Although CHELCO

argues that this case is similar to Jacobs, we disagree. Unlike Jacobs, the record in

this case does not indicate a disparate historical presence that favors CHELCO.

      In sum, we will not disturb the Commission’s findings and conclusions

related to uneconomic duplication because they are supported by competent

substantial evidence and are not clearly erroneous.

                               Customer Preference

      CHELCO also challenges the Commission’s findings and conclusions with

respect to customer preference. Rule 25-6.0441(2)(d) provides that “if all other

factors are substantially equal,” customer preference may be considered in

resolving territorial disputes. Fla. Admin. Code R. 25-6.0441(2)(d) (2010).

CHELCO argues two points. First, CHELCO contends that customer preference

should not have been taken into account because the other factors considered by

the Commission were not substantially equal. Given our resolution of the issues

already raised by CHELCO, we reject this argument at the outset. Second, without

conceding that customer preference was properly considered, CHELCO argues that

the developer’s preference should not have been deemed customer preference for

the purpose of rule 25-6.0441(2)(d). This argument is also without merit.



                                        - 19 -
      The record reveals that in September 2008 and February 2011, developer

Emerald Coast Partners, LLC, sent letters to Gulf Power indicating its preference

that Gulf Power serve as the electric utility provider for Freedom Walk. Both

letters were sent to Gulf Power by the developer’s managing partner, Bruce Houle.

The 2011 letter also indicated that Gulf Power remained the developer’s preferred

utility despite the ongoing dispute with CHELCO. Competent substantial evidence

supports the Commission’s findings and conclusions as to customer preference.

      CHELCO also argues that developer Emerald Coast Partners, LLC, should

not be a proxy for the customer because the interests of the developer and the end-

user customer might be inconsistent with one another. 3 CHELCO points to the

Commission’s reluctance in prior disputes to substitute the developer’s preference

for end-user customer preference. In this case, the developer was the only

reasonable proxy for future Freedom Walk residents. Based on the letters sent to

Gulf Power, which were the only evidence in the record of customer preference,

the developer expressed a preference that Gulf Power provide electric service to

Freedom Walk.

      CHELCO urges this Court to reweigh and reconsider the evidence and to

read additional requirements into the consideration of customer preference. For

       3. Although CHELCO argues that the developer is not an appropriate proxy
for the customer, CHELCO chief executive officer Leigh Grantham conceded at
the hearing that a developer acts as an agent on behalf of the end-user customer.


                                       - 20 -
example, CHELCO notes that other customer preference decisions discussed in the

Commission’s order involved cases where the Commission considered developer

preference as well as at least some end-user customer preference. Where the facts

demonstrate that a developer is the only reasonable proxy for the customer, we

reject the invitation to limit the consideration of developer preference to situations

where there is also end-user customer input. CHELCO also invites this Court to

examine the motives behind the developer’s preference for Gulf Power. Again, we

will not usurp the Commission’s proper role as the finder of fact. The Commission

did not depart from the essential requirements of law when it considered the

developer’s preference for Gulf Power. Competent substantial evidence in the

record reflects that preference.

                                   CONCLUSION

      In sum, the Commission’s findings and conclusions are supported by

competent substantial evidence and are not clearly erroneous. For these reasons,

we affirm the Commission’s order granting Gulf Power the right to serve the

Freedom Walk development.

      It is so ordered.

POLSTON, C.J. and PARIENTE, LEWIS, CANADY, and PERRY, JJ., concur.
QUINCE, J., dissents.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.



                                        - 21 -
An Appeal from the Florida Public Service Commission

Norman H. Horton Jr. and Robert J. Telfer III of Messer, Caparello & Slef, P.A.,
Tallahassee, Florida; Marsha E. Rule and Martin P. McDonnell of Rutledge,
Ecenia & Purnell, P.A., Tallahassee, Florida; and William B. Willingham and
Michelle Hersehell of Florida Electric Cooperatives Association, Inc., Tallahassee,
Florida,

      for Appellants

S. Curtis Kiser, General Counsel, Samantha M. Cibula, Attorney Supervisor, and
Kathryn G. W. Cowdery, Senior Attorney of the Florida Public Service
Commission, Tallahassee, Florida; Steven R. Griffin, Jeffrey A. Stone, and Russell
A. Badders of Beggs & Lane, LLP., Pensacola, Florida,

      for Appellees




                                       - 22 -