ML19329E176
| ML19329E176 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 11/10/1972 |
| From: | Brand W, Clabault W, Leckie D JUSTICE, DEPT. OF |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8006110532 | |
| Download: ML19329E176 (9) | |
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/O ~ W UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION THIS DOCUMENT CONTAINS POOR QUAUTY PAGES In the Matter of
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Consumers Power Company Docket Nos (Midland Plant, Units Su-JJUA 1 and 2)
APPLICATION FOR ISSUANCE OF SUBPOENAS DUCES TECUM The Department of Justice respectfully requests the issuance of the attached subpoenas duces tecum pursuant to the Regulations of the Atomic Energy Connission,10 CFR 2.720 and Section 2.740f(3) as amended 37 F.R. 15133 in which the folicwing companies as defined in the schedules cetached thereto would be required to produce the documents referred to in the schedule for incpection and copying by the Dapart-ment of Justice.
W. G. Meese, President Detroit Edison Co.
2000 Second Avenue Detroit, Michigen 48226 D. C. Cook, President American Electric Pcwer Co., Inc.
2 Broaduay New York, how York 10004 C. D. Rces, President "orthern Indian Public Service Co.
5253 Hoban Avenue Hhn:nond, indiana 46325 J. '.". Decic, B a e ' { c n :.
Toledo Edi.aon Ccmceny 420 ILdiaca Asenuh Toledo, Ohio 43601 80 os y 33 D 2 M
The initial prehearing conference order dated August 7, 1972, states as the relevant matters in controversy:
The basic thrust of Justice's case is that (a) applicant has the power to grant or deny access to coordination; (b) applicant has used this power in an anticompetitive fashion against the smaller utility systems; (c) applicant s said use of its power has brought into existence a situation inconsistent with the antitrust laws, which situation would be maintained by activities under the licenses that applicant seeks.
Neither the intervening parties nor' the Atomic Energy Commission's regulatory staff enlarge this scope.
Hence,, the scope of the relevant matters in con-trov'ersy is as herein outlined.
The documents referred to in the schedule would assist in confirming the existence of that power by establishing the enistence or lack of other bulk power supply coordinating alternatives to actual or potential bulk power cuppliers in
' Michigan's lower peninsula or other, independent sources of
' bulk power supply to retail distribution systems in liichigan's louer peninsula.
As the Supreme Court said in United States v. El Paso Gas Co., 376 U.S. 651 (1963) speaking of the utilities industry:
"This is not a field where merchants are in a continuous daily struggle to hold old customers and to win new ones over from their rivals."
The number of episodes of actual or patential. competition of the type for which documents are. requested herein are relatively fey and accordingly, production of such documents made or dated on January 1,1960, and thereafter r.clating to ecmpatitica at stoicsale in Michigen's - lc.ar penin::ula, should nec bc c subs tratial bur-den to tha cddressec compcnic5, t."hile producing the number
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a of episodes necessary to indicate a policy or pattern.
December 5,1972, the time for return, is reasonable.
On request of the subpoenaed persons, we will, of course, waive personal appearance in Washington, cnd would even be agreeable to return by mail accompanied by an appropriate certificate of compliance by the persons named.
Respectfully submitted,
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WALLACE E. LPJ.ND DAVID A. LECKIE WILLIAM T. CLABAULT Attorneys, Department of Justice Washington, D. C.
November 10, 1972 1
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t SCHEDULE A.
De finitions.
1.
" Company" "you" or "your" means the company that is the addressee of this subpoena, its subsidiaries or affiliates, predecessor companies and any entities providing electric service at wholesale, the properties or assets of which have been acquired by the addressee company.
2.
." Documents" means all writings and records of every type made or dated January 1,1940, or thereaf ter, in the possession, control or custody of the company, its directors', officers, employees or agents, including but 'not lLmited to memoranda, correspondence, reports, surveys, tabulations, charts, books, pamphlets, photographs, maps,
bulletins, minutes, notes, diaries, log sheets, ledgers,
transcripts, microfilm, computer printouts, vouchers,
acccunting statements, engineering diagrams ("one-line" diagrams), mechanical and electrical recordings, telephone and te,legraphic communication, speeches, and all other records, written, electrical, mechanical or otherwise.
"Documente" shall also mean copies of documents, even though the originals thereof are not in possession, custody or centrol of the Camp:ny, and every copy of a doeurant which contains honduritten' or other notations or which other-wise does not duplicate the criginal or any other copy.
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3.
" Wholesale customer" means any entity such as a private corporation, municipal corporation, or rural electric i
cooperative engaging in or proposing to engage in the distri-bution and sale of electric power at retail, including but not limited to entities additionally or solely engaging in or proposing to engage in the generation and transmission of power in bulk and/or those purchasing or proposing to purchase firm power or coordinating power and energy from other electric utilities, including but not limited to the Consumers Power Company.
4.
" Supply of bulk power" includes the furnishing of firm full requirements bulk power supply service at whole-scle for resale by eny company or the interchange or supply of coordinating power and energy.
5.
" Coordination" and " coordinating" shall include, but are not limited to, reserve sharing, economic dispatch f
or economy interchange, and pooling of load growth for joint or staggered additions of generating or transmission facili-ties.
" Coordination" and " coordinating" shall also meen joint ventures or the sharing of participation in the cunership, operation or cutput of generating facilities and the shcring of ownership, construction, or use of transmission facilities.
6.
" Michigan Power Pool" means the Consemars Power Ccapany cad the Detroit Edison Ccapany.
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'D.
Documents Requested.
1.
Documents reflecting your basis for determining whether the supply of bulk power by your company to a whole-sale customer in Michigan's lower peninsula would be economi-cally feasible based on the size of load, rate or growth and distance frca existing facilities and/or any other factors considered in the determination of economic feasibility.
2.
Documents concerning or reflecting (a) agreements or understandings, or (b) unilateral policies--not to compete with other electric utilities in specific'd areas or for.
specified wholesale customers in Michigan's lower peninsula for supply of bulk power, including but not limited to restricting uce of your transmiccien facilitics which might permit others such as Buckeye Power, Inc., to competc for such supply of bulk power.
Documents concerning or reficcting your policy or policies based on other considerations (apart from technical or cconomic feasibility) on uhother or not to make such supply of bulk pouer to wholesale customers in Michigan's lower peninsula (or to permit others such as Eucheye Pover, Inc., to make such supply of bulk power by ut'ilizing your transmicsica facilicies) including but not j
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limited to interpretations of state or federal law or interpretations of state or federal administrative action.
3.
Documents reflecting your consideration of the acquisition of wholesale customers in Michigan's lower peninsula including but not lLnited to documents which reflect a boundary line, or_ understanding, or arrangement concern-ing the respective spheres of influence of your company and the Consumers Power Company or the Michigan Power Pool.
Please exc'l'ude documents related wholly to consideration of the cost of such acquisition and documents impicmenting or carrying,out any determination to acquire such wholesale customer.
4.
Documents conccrning the ticing or conditioning of any interconnection or coordination between your company and the Consumers Power Company to any such agreements, arrangements or understandings, in paragraphs 2 and 3, supra.
5.
Documents concerning competition between your company and the Consumers Power Company for wholesale custo-mers in FEchigan's lower peninsula and any request for a supply of bulk power by any 1:holesale customer now served by _ Consumers Power Company or located generally within its nervice area.
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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY CO:e!ISSION In the 1htter of
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Consumers Power Company Docket Nos. 50-329A (Midland Plant, Units
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50-330A 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of APPLICATION FOR ISSUANCE OF SUBF0ENAS DUCES TECUM, dated November 10,'following by deposit 1972, in the above captioned mctter have been served on the in the United States mail, first class or air mail, this loth day of November.
Jerome Garfinkel, Esquire Atomic. Safety cnd Licensing Chairman, Atomic Safety and Board Panel Licensing Board U. S. Atomic Energy Ccamicsion U. S. Atomic Energy Commission Unshington, D. C.
20545 Washington, D. C.
20545 Chaircan, Atomic Safety and Hugh K. Clarh, Esquire Licensing Appaals Board Post Office Box 127A U. S. Atomic Energy Commission Kennedyville, Maryland 21645 Washington, D. C.
20545 Dr. J. Vcnn Leeds, Jr.
Mr. Abraham Braitman, Chief Post Office Bo:: 941 Office of Antitrust and Indemnity Houston, Texac 77001 U. S. Atomic Energy Commission Washington, D. C.
20545 William Warfield Ross, Esquire Keith S. Watson, Esquire Harold P. Graves, Esquire Wald, Harkrader & Ross Vice President and General Ccunsel 1320 Ninctcenth Street, N.W.
Consumers Power Company Ndchington, D. C.
20036 212 West Michigan Avenue Jackson, Michigan 49201 Honerable Frcnk Kelly Attorney Concrcl Joceph neth:rg, Esquire Stcte of Michigan Benjamin H. Vogler, Esquire Lansing, Michigan 40913 Antitrus c Counsel for AEC ReguLttory Stc ff James F..Fairc:n, Ecquire U. S. l.tomic Energy Commission 2600 Virgini Avenue, N.W.
Ucchington, D. C.
20545 W 75 9 y ~,, D. C.
20037 l
- Mr. Frank W. Karas, Chief Public Proceedings Branch Office of the Secretary of the Comission
. U. 5. Atomic Energy Comission Washington,' D. C.
20545 WALLACE E. EPalND Attorney, Antitrust Division Department of Justice Wachington, D. C.
20530 i
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