PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 94-4323

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D. C. Docket No. 88-2145-CIV-ATKINS

TEC COGENERATION INC., RRD CORPORATION, as

they are partners in South Florida Cogeneration Associates,

THERMO ELECTRON CORPORATION, ROLLS-ROYCE, INC.,

Plaintiffs-Appellees,

versus

FLORIDA POWER & LIGHT COMPANY,

FPL GROUP, INC., FPL ENERGY SERVICES, INC.,

Defendants-Appellants, 

WAYNE H. BRUNETTI, LARRY T. ATKINSON,

JOE C. COLLIER, JR., CLARK COOK,

Defendants,

FLORIDA PUBLIC SERVICE COMMISSION,

Movant.
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No. 94-4496

-------------------- D. C. Docket No. 88-2145-CIV-ATKINS

TEC COGENERATION INC., RRD CORPORATION, as

they are partners in South Florida Cogeneration Associates,

THERMO ELECTRON CORPORATION, ROLLS-ROYCE, INC.,

Plaintiffs-Appellees,

versus

FLORIDA POWER & LIGHT COMPANY,

FPL GROUP, INC., FPL ENERGY SERVICES, INC.,

Defendants-Appellants,

WAYNE H. BRUNETTI, LARRY T. ATKINSON,

JOE C. COLLIER, JR., CLARK COOK, et al.

Defendants.

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Appeals from the United States District Court

for the Southern District of Florida

------------------------------ (June 10, 1996)

 ON PETITION FOR REHEARING AND 

SUGGESTION OF REHEARING EN BANC

Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and MILLS*,

District Judge.

PER CURIAM:

------------------------------------

*Honorable Richard Mills, U.S. District Judge for the Central District of Illinois,

sitting by designation.

 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:
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1. The district court recognized that "FPL's conduct has been carefully

structured by the [PSC] and supervised in many [PSC] proceedings."

2. Under Fla. Admin. Code Rule 25-17.087 (1988), a cogenerator

may justify changes to the standard form, through objection to

the PSC, which retains full control over the subject matter.

 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.

 

 In all other respects, the petition for rehearing is DENIED. No member of this

panel nor other judge in regular active service on the court having requested that the

court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the suggestion of rehearing en banc is

DENIED.
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