                   United States Court of Appeals,

                          Eleventh Circuit.

                       Nos. 94-4323, 94-4496.

 TEC COGENERATION INC., RRD Corporation, as they are partners in
South Florida Cogeneration Associates, Thermo Electron Corporation,
Rolls-Royce, Inc., Plaintiffs-Appellees,

                                 v.

    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.

 TEC COGENERATION INC., RRD Corporation, as they are partners in
South Florida Cogeneration Associates, Thermo Electron Corporation,
Rolls-Royce, Inc., Plaintiffs-Appellees,

                                 v.

    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.

                           June 10, 1996.

Appeals from the United States District Court for the Southern
District of Florida (No. 88-2145-CIV-Atkins), Clyde Atkins, Judge.

  ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and
MILLS*, District Judge.
     PER CURIAM:

     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,


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

     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.
