ML20005C073
| ML20005C073 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 11/10/1981 |
| From: | Roth A FLORIDA CITIES (FLORIDA MUNICIPAL UTILITIES ASSOCIATE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8111180356 | |
| Download: ML20005C073 (30) | |
Text
l l
p .
Florida Cities: 11/10/81 BEFORE THE UNITE SfATES NUCLEAR REGJLATORY CDMMISSION BEFORE THE ATOMIC SAFEIY AND LICENSIII3 BOA 3D
)
In 7ne Matter Of ) OgJC EIORIDA IUdER & LIGff CDMPAW ) Docket tb. 50-389A
)
(St. Incie Plant, Unit Ib. 2) ) Ibvenber 10, gl }$ 10 P4:32
)
i""""
, ,,r,q;E nss OF
& stn SECE.E_Id, Ct .T.I ERAtiCt1 A!EdER OF EIDRIDA CITIES IN OPPOSITION 10 "SUPPLEMI27fAL MDORANDUM OF FIORIDA POWER & LIGfr OOMPANY"
(; ,*N %
[y 1.f 7. *.
,\
IS.LL.UL i V LD) J Bobert A. Jablon ,
Alan J. Mth f N OV 17 1931'~ _()
Daniel Gutt: nan i "( u.yyjm,"*
Joseph Van Eaton Attorneys fbr the Lake Worth Utbhgs,-g y, the Utilities Cbmussion of New .vn ,
, he t
Sebring Utilities 02tmission, arri the Cities of Alachua, Bartos, Ft. Meade, Ibnestead, Key West, Kissimnee, Inesburg, Mt. Ibra, thberry, St. Clotri, Starke, Tallahassee, and Vero Beach, Florida, and the Florida M.xnicipal Utilities Association Novenber 10, 1981 Law offices of:
Spiegel & McDiarmld 2600 Virginia Avenue N.W.
Washington, D.C. 20037 4o\
8111180356 011110
@MPDR ADOCK 05000389 PDRg
TABLE OE' 03NIDES Cases Page Table of Autharities ............................................ ii Introduction .................................................... 1 ARGUMETT I. THE COURT GDER ON 'IAIIAHASSES'S NLCLEAR ACCES CEAIM DOES :DT SAVE CDLIATERAL OS'IOPPEL EFFECT . . . . . . . . . . . . . . . . . . . . 2 A. The Order Is Ibt Final And Does Meet Other .
Criteria Ebr Collateral Estoppel ....................... 2 B. The Order Does !bt Apply Substantively Ib Other Cities ........................................... 5 C. Ib the Extent Tallahassee And Possibly Mt. Ibra May Be callaterally Estopped By The Order, They Ranain Entitled Ib Scunary Disposition 1 hat EPL Has Acted Inconsistently with The Antitrust Laws Apart Fron Its Denying 7 hose To Cities Nuclear Access ................................................. 7 II. THE FIFIH CIRCUIT'S GAINESVILLE DECISION AND FERC OPINION to. 57 RETAIN THEIR G)LIATERAL ESTOPPEL r n u;r....................................................... 7 ATIA M IT: Florida Power & Light Coupany v. FERC, Ib. 80-5259 (5th Cir. , Ibvenber 6,1981)
W e sus
l TABLE OF AMHORITIES Cases Page Acha v. Beame, 570 F.2d 57 (2d Cir. 1978)....................... 3 Berkey Photo Inc. s'. Eastman Kodak Coupany, 603 F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980).......... 5 Consers Power Conpany (Midland Units 1 and 2),
ALAB-452, 6 NRC 892 (1977).................................. 6, 7 Florida Cities v. Florida Power & Light Cmpany, No. 79-5101-CIV,7LK (S.D. Fla. October 9, 1981) . . . . . . . . . . . . . passim Florida Power & Light Cmpany v. FERC, tb. 80-5259
( 5th Cir . Ibysuber 6, 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Florida Power & Light Coupany, Opinion 16. 57, 32 PUR 4th 313 (August 3,1979), appeal disnissed, Florida Power & Light Canpany v. FERC, D.C. Cir.
No. 79-2414 (April 25, 1980)................................ passim Gainesville Utilities Dept. v. Florida Power & Light Conpany, 573 F.2d 292 (5th Cir.), cert. denied, 4 39 U . S . %6 ( 1978 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim GAF Corp. v. Eastman Kodak Caupany,1981 Trade Cis.
164, 205 (S . D. N.Y. August 3, 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 5, 9 Harding v. Carr, 83 A.2d 79 (Suprene (burt of Rode Island 1951)................................................ 3 Houston Lighting & Power Caupany (South Texas Project, Units 1 and 2 ) , LBP-79-27, 10 NRC 563 (1979) . . . . . . . . . . . . . . . . 4 Kansas Power & Light Company v. Federal Power Camus_sion, 554 F. 2d 1178 (D.C. Cir. 1977 ) . . . . . . . . . . . . . . . . . . 3 Parklane Hosiery coupany v. Shore, 439 U.S. 322 (1979).......... 3,4,7 Republic of China v. American Express Coupany, 190 F.2d 334 (2d Cir. 1951)................................. 2 Starker v. United States, 602 F.2d 1341 (9th Cir. 1979)......... 4 Stebbins v. Keystone Insurance Canpany, 481 F.2d 501 (D.C. Cir. 1973)............................................ 5 Toledo Edison Canpany and Clevelard Electric Illuminating Coupany (Davis-Besse Nuclear Power Station, thits 1, 2 and 3; Perry Nuclear Power Plant, thits 1 and 2),
AIAB-560, 10 NRC 265 (1979)................................. 6,7,8
- ii -
- f. age Miscellaneous Section 105 of the Atanic Diergy Pct, 42 U.S.C. i2135.............................................. 6, 8 Section 2 of the Sherman Act, 15 U.S.C. 2................................................. 4, 5 Rule 803 of the Eladeral Rules of Bridence . . . . . . . . . . . . . . . . . . . . . . . . 4 i
Rule 54(b) of the Federal Rules of Civil Procedure. . . . . . . . . . . . . . . 2, 3 Restatement (Second) of Judgments $68.1 (Tent. Draft ib. 4, 1977)................................................. 5 .
e o
- iii -
norida Citits: 11/10/81 BEEDRE THE LNITED STATES NUCLEAR RD3UIATORY CDet4ISSION BEEORE THE AIOMIC SAFEll AND LICENSIM3 BOARD
)
In The Matter Of )
EIORIDA M4ER & LIGfr CDMPANY ) Docket Ib. 50-389A
)
(St. Incie Plant, thit No. 2) ) November 10, 1981
)
ANSWER OF EIDRIDA CITIES IN OPPOSITION TD
" SUPPLEMENTAL MDORAtOUM OF FIDRIDA POWER & LIGHT CX@ANY" Pursuant tc the Ibard's Mertorandtra and Order of Cctober 22, 1981, norida Cities hereby subnit their memorandtra in answer and opposition to Horida Power
& Light 03npany's ("FPL") supplanental mortorandtan of Cctober 30, 1981, concerning Florida Cities v. Florida Power & Light Carpany, tb. 79-5101-Civ,JLK (S.D. na. October 9, 1981) and GAF Corp. v. Eastman Kodak Catpany, 1981 Trade Cas. 164,205 (S.D.N.Y. August 3, 1981).
Introductim The Order in Florida Cities granted FPL's notion for suntnary jtrigment on l
Tallahassee's nuclear access claim. The Order is " subject to revision" in that case, according to Rule 54(b) of the Federal Rules of Civil Procsiure. The I
Order is therefore rut finsl. Ebr that and other important reasons explained below, the Order does not give rise to collateral estoppel against the other Cities or even against Tallahassee. Ibr does the Order negate the milateral estoppel effect of the Fifth Circuit's Gainesville decision or the EERC's Opinion tb. 57. Essentially, the Order holds that Tallahassee had "not shown a firm interest in" (or a need for) FPL's nuclear facilities and that accordingly FPL's denying Tallahassee any nuclear access did not violate the Sherman Act.
- s,-iw r-e-- , --r-- - ,- v - -- .- -w--- ' ' - - =- *' W "
1 The Order does rot apply to other Cities; all of the other intervenor Cities (except Mt. IbraJ have sotx3 h t to and agreed to direct grticipation in St. Incie Unit No. 2 through RIPA. Certainly the Order does not apply to Cities inside FPL's retail area, dere EPL has been fourxl to have engagel in "anticonpetitive corduct. " Ebrthermore, Gainesville and FERC Opinion Ib. 57 detonstrate other situations inconsistent with the antitrust laws (other than EPL's denying Tallahassee nuclear access), justifying some relief even for Tallahassee as well as for other Cities. Finally, the recent GAF v. Eastman Kodak case canfirms that Gainesville_ and FERC Opinion Ib. 57 give rise to collateral estoppel and that the Order in Florida Cities does not.
ARGUMENP I. THE COURT ORDER CN 'IALIAHASSEE'S MX: LEAR PCCESS CUAIM DOES IDF 1 AVE COLIATERAL ESTVPPEL EFFM.
A. The Order Is tbt Final And Does Meet Other Criteria Ebr (bilateral Estoppel.
- 1. Chly final orders give rise to collateral estoppel. GAF v.
Eastman Kodak, at pp. 73748-73749. The Order in qacstion as issued in a case involving multiple prties and multiple claims. According to Rule 54(b) of the Federal Rules of Civil Procedure, the Order is therefore " subject to revision at any time before the entry of a jtdgment adjudicating all the claims and all the rights and liabilities of all the parties." It is subject to revision tnless and tntil the 03urt makes "an express determination that there is no just reason for delay arx1.. an express direction for the entry of jtdgment." The express determination and direction have not been made in the Florida Cities case. The Order is therefore not final. See, Republic of China v. American Express Ccrapany,190 F.2d 334, 338-339 (2d Cir.1951), Mlding that orders Wich otherwise seem final (such as an order discharging a stakeholder frau independent liability) are subject to revision and are not firal tnder Rule
54(b) or appealabic, absent the express determination and direction.1/ 'Ihe cases relied cn by EPL (FPL October 30, 1981 Mstorandun, p. 5) do rot involve orders that were subject to revision and thus non-final.
- 2. A losing prty may be estopped in a subsequent action. Parklane Hosiery Ccxupany v. Shore, 439 U.S. 322 (1979) and GAF, supra (estoppel of a losing defendant); Harding v. Carr, 83 A.2d 79 (Suprene 03urt of Rhode Island 1951), discussed at Cities' Septanber 14, 1981 Manorandun, page 9 (estoppel of a
. losing plaintiff). FPL cites no authority entitling a winning Earty to estop different adversary prties (here, Cities other than Tallahsssee), which have not yet been the subject of an adverse order. When EPL moves the Court to grant sumiary julgment on other Cities' nuclear access claims, they 2] will defend their claims and the 03urt will decide. In the meantime, the Board should proceed with the matters before it, miess and mtil it has s:me true hard basis for deferring decision to another forun. Ccurpare Kansas Power & Light C&ny
- v. Federal Pcur Ccr: mission, 554 F.2d 1178,1185-1186 (D.C. Cir.1977), holding that the Federal Ebwer C:2mtission should pursue its consideration of a nurger application, incluiing consideration of any anticcmpetitive behavior, at the same time an antitrust case against the udlity as p oceeding in District Court.
- 3. The Order in Florida Cities as issued under the Sherman Act, which establishes different and nore rigorous standards before relief may be granted, than the standards cpverning this NRC proceeding. 'Iherefore, the Order against Tallahassee's nuclear access claim does not estop Tallahassee or the lj Ebrther: tore, an express " direction for the entry of judgment" would not turn a non-final order into a final order. See, Acha v. Beame, 570 F.2d 57, 59-63 (2d Cir.1978), holding that a Rule 54(b) "deternination and direction" did not render an order final or res judicata, where the order otherwise lacked characteristics of finality (there, an order granting plaintiffs Inrtial suranary judgment in a discrimination suit, where the issue of relief and other issues renained outstanding) .
2/ Key West, Isesburg, and Vero Beach are not parties to the District Court case and cannot be the subject of atry FPL motion to the 03urt for surmary julgment.
l other Cities here. See, Houstcn Lightinc & Power Carpany, (South Texas Project, Units 1 and 2) LBP-79-27, 10 NRC 563, 569-71 (1979), lulding that where as here, the legal standards of two statutes are significant-ly different, a decision of issues mder one statute does mt give rise to collateral estoppel in the litigation of shnilar issues under a different statute.
See also the cases and autlurities in EPL's August 7, 1981 Pasponse, pp. 89-90.
- 4. A determination that is inconsistent with another determination of the same issue does not give rise to collateral estoppel. See Parklane Hosiery
- v. Shore, 439 U.S. at 330 and Starker v. United States, 602 F.2d 1341,1349 (9th Cir. 1979), disc;ssed at Cities' September 28, 1981 tercrandum, p. 26, fbotante.
FPL invokes tha doctrine of inconsistency to ar3ue against collateral estoppel for Gainesville ard FERC Opinion tb. 57 on the grounds they are inconsistent with the Order in Florida Cities (FPL Cetober 30,1981 !%mrandun, p. 8) . Yet, FPL unblushingly argues in favor of collateral estoppel fbr the Order. 'Ib the extent of inconsistency, neither that Order for Gainesville nor EERC Opinion' tb.
57 should be given mllateral estoppel effect. However, the facts stated in Gainesville ard found in Opinion Ib. 57 renain evidentiary (see Rule 803(8) of the Ebderal Rules of Evidence), even absent collateral estoppel, and the facts convincingly prove a situation inconsistent with the antitrust laws. Ibreover, as we explain below, in crucial regards Gainesville and FERC Opinion Ib. 57 are not inconsistent with the Order in Florida Cities. Gainesville ard FERC Opinion tb. 57 retain their collateral estoppcl effect and prove a situation inconsistent with the antitrust laws for purposes of this case, at least for Cities other than Tallahassee or possibly Mt. Ebra.1/
l_/ There is another but nore 'ntroversial argunent against mllateral
~
estoppel. With regard to Sect: " the Sherman Act, the Order rests on the alternative grounds that (a) F' 1 Ironopoly pwer in electricity, at pp.
7-8, and fb) that even if FPL'r ..c. poly pcser in the relevant market, Tallahassee's nuclear access c1 a hils for want of a firm interest, etc., at pp. 8-11. Saae aatharities h]ld that, to the extent an order rests on E00D UrE O WrINUED ON NEXT PAGE
B. 'Ihe Order Does !bt Apply Substantively 'Ib Other Cities.
The Order in Flcrida Cities states that FPL's nuclear facilities are not the product of a cmspiracy and are instead the Iroduct of "saund business jdgment" (pp. 8-9). 'Ihat is not enough to save EPL,lowever. In the w3rds of the SecoM Circuit:
'Ihe mere ponession of nonopoly pwer does rot ipso facto condsun a
, market prtuipant. But, to avoid the Iroscriptions of s2, the finn must refrain at all times fran conduct directed at snathering cong tition. 'Ihis doctrine has to branches. thlawful acquired monopoly renains anathema even sen kept donnant. AM it is no less true that a finn with a legitimately achieved nonopoly may not wield the resulting pwer to tighten its hold m the market.
Berkey Photo Inc. v. Eastman Kodak Canpany, 603 F.2d 263, 275 (2d Cir. 1979), cert. denied, 444 U.S. 1093 (1980).
In their previous subnittals to the ibard, the Cities have explained at length low FERC Opinion No. 57, the Gainesville decision, and confirming docunentary evidence prove that FPL has engaged in "anticangtitive conduct."
At least tlose decisions are determinative with regard to the "inside" Cities. 2/ That anticanpetitive behavior includes a long history of refusals to ECCTr3 ore CDNTINUED FROM ETNIOUS PAGE 1
alternative independent determinations, neither gives rise to collateral estoppel. See, 'Ihe Festatenent (Second) of Judgments 68.1 (Tent. D/ aft Ib. 4, 1977) at Omnent i:
If a judgment of a court of the first instance 'is based m deterninations of two issues, either of which staMing iMependently would ce sufficient to support the result, the
. judgment is not conclusive with respect to either issue standing alone.
- See also, Steboins v. Keystone Insurance Carpany, 481 F.2d 501, 506-510 (D.C.
Cir.1973), holding that a plaintiff suing for discriminatory refusal to enploy was not estopped from proving his enplovability though his sinilar previous suit against another conpany had been decided against him m alternative grounds of unemployability and failure to make a job danand. But carpare GAF v. Eastman Kodak, at 73750, tolding that relitigation of an alternative deternination may be precluded if the determination otherwise gaalifies for collateral estoppel.
2/ Opinion No. 57 expressly fbund that EPL engaged in "anticanpetitive ccMuct." 32 PUR 4th at 326, slip op. at 18 (" voluminous evidence .. relating FOortDTE (DNTINUED ON NEXT PAGE
deal and attcapts to take over. As to those "insids" Cities, FPL plainly has
- monopoly power in retail sales, Wolesale sales, generation, and transritission.
32 W R 4th at Ip. 321-325; slip opinion, pp. 11-16. It is inconsistent with the antitrust laws fbr a nuclear licensee to refuse to deal with conparatively small entities in its rionopoly area, *ere the refusal would have the natural effect of maintaining the monopoly. Consumers Power Coupany (Midland Units 1 and 2),
AIAB-452, 6 tac 892,1026-1031,1094-1098 (1977) .
FPL's anticanpetitive wrongs extend to outside Cities - at least insofar as the outside cities have asught to deal with WL - because of WL's yardstick coupetition, the Gainesville market division (further discussed in Argunent II belos), WL's refusals to deal, and the consequent enhancement of WL's retail :
, monopoly (as most recently explained in Cities' Septenber 28, 1981 Memorandun, pp. 2-19).
'Ihe Order in Florida Cities grants WL's :totion for sutunary jtdgment on Tallahassee's nuclear access claim, essentially because Tallahassee did not da,onstrate in the Caurt's view a firm interest in WL's nuclear facilities. By contrast, the other intervenor Cities (other than Tallahassee and Mt. Eora) have da:enstratal a ficu interest by agreeing to participate in St. Lucie Unit Ib. 2 i through the Florida M2nicipal Ibwer Agency.
l RX7rBUTE CNrINUED FIEM PREVIOUS PAGE:
to anticanpetitive condtet") and at 34, slip op. at 40 ("In spite of the i anticanpetitive conduct recounted above") . 'Ihe fbrmer Fifth Circuit has. just issued its decision in Florida Power & Light Catpany v. FERC, tb. 80-5259 (5th l
Cir. tbvember 6,1981), stating that a reference in a Crru.ssion order to Opinion tb. 57 "did not amount to a finding (in the order under review] of any specific anticanpetitive activity or of any antitrust violation" s) as to
- justify the rernedy in the order under review. Slip opinion (attached), pp.
12820-12821. Wnether or not opinion Ib. 57 arguably justified the rarticular l transmission renely in the subsequent order - the FERC's powers to require transntission are circunscribed - there can be no dispute that opinion tb. 57 expressly found a broad array of "anticanpetitive conduct." Transmission relief -
is more generally left to antitrust courts (see FPL v. FERC, at 12817) and to .the NRC toder Section 105 of the Atomic Energy Act, 42 U.S.C. y2135 (see Toledo Edison Canpany and Cleveland Electric Illuninating Carpany (Davis-Besse Nuclear
! Power Station, thits 1, 2, and 3; Perry 112 clear Powr Plant, thits 1 and 2),
AIAB-560,10 NRC 265, 287-295. including itsa 3 in footnote 60 at 288-289 (1979)) .
f
_~r,__m~. e ,. , , . - - - - _
C. Ib The Extent Tallahassee And Possibly Mt. Ibra May Be Callcterally Estopped By 'Ihe Order, 'Ihey Ihnnain D1 titled Ib Smmary Dirposition hat FPL Has Acted Inconsistently with The Antitrust Laws Apart Frm Its Denying those Two Cities tbclear Access.
The Cities subnit that FPL's broad anticompetitive conduct and purposes, not alone its refusals to allow participation in its nuclear facilities, establish a situation substantially inconsistent with the antitrust laws. Thus, Tallahassee 4
should be eligible for relief, aprt fran prticipation in St. Iucie Unit Ib.
. 2. 1/ The range of relief the Cities seek (sme of 411ch relates to St. Lucie Unit Ib. 2) is highlighted in Cities' August 7,1981 Besponse, Ip. 39-52.
Tallahassee and Mt. Dara should be eligible, for example, for base load power in the relief phase of this proceeding. Cmpare Gainesville, supra. See also Consumers Power, supra, lulding that various antiempetitive behavior (at 1051-1094), not limited to nuclear refusals to deal, may give rise to various forms of relief 41ere an mcoMitional nuclear operating licesse would maintain the situation inconsistent; Toledo FAierr1, supra.
II. 'HE FIFIH CIRCUIT'S GAINESVILLE IECISION AND EERC CPINION to. 57 REIAIN THEIR CDLIATERAL ESIGPPEL EFFECT
- a. Fairly read, the Order in Florida' Cities does not conflict with the Fifth Circuit's decision in _Ga_inesville or FERC Opinion tb. 57 or, therefore, deprive than of collateral estoppel effect. See, Parklane Hosiery v. Shore, 439 U.S. at 330, discussed above.
- 1. The Order in Florida Cities does not discuss Gainesville, but holds that EPL's denial of nuclear access to Tallahassee was not the result of a conspiracy (pp. 6-7) . 'Ihe Order cannot be read to contradict the Fifth Circuit decision. At! I:ost it stands for a silent finding that the canspiracy erxled and is no longer actionable tmder the Sherman Act. Ebwever, because of market lags,
~.
lj In a different regard, the District C3urt also found that Tallahassee may be entitled to other antitrust relief. The Order in Florida Cities denlai FPL's motion for statmary jtrigment on Tallahassee's antitrust claims related to natural gas. (The Court also denied Tallahassee's cross-r:otion for strnry jtrigment on its natural gas claims.) The Q)urt held that those claims should be tried.
-?
the aitaation mny renain inconsistent with the antitrust laws, even after the conspiracy has ended and is no longer actionable directly taider the Sherman Act.
Section 105(a) of the Atanic Ehergy Act, 42 U.S.C $2135, exEressly authorizes the ESC to take subsequent action fbliowing a court de* amination of a past '.
antitrust violation. This Iroceeding is not a Section 105(a) proceeding; but the NRC's powers are broad, Toledo Ediscx1, supra, and the statutory Irovision proves that post-jMicial NRC relief for a " situation inconsistent" is not constrained by the statute of limitations. The Gainesville decision may therefore be invoked and applied here.
- 2. The Order makes an alternative finding that EPL lacked monopoly power. While that finding may plausibly apply to the geographical area that wauld include both Tallahassee and FPL, it does not necessarily contradict and cannot be read fairly to contradict the determinations in EERC Opinion tb. 57
- that EPL has monopoly power within the perimeter of its retail service area 'in terms of retail sales, Miolesale sales, overall sales, generation, and trans-mission (32 PUR 4th at 323-325, slip opinion at pp.13-16) and that EPL has engaged in "anticoapetitive conduct" there (Argtznent IB, above) .
- 3. Tne Order refers to electricity as the Iroduct market.
Prestanably, the Order intended to distinguish beteen the electricity an1 the production facilities such as nuclear power plants Qtich Iroduce electricity.1/
The Order cannot be fairly read to contradict the decisions mncerning prodtx:t
. markets or Iroduct sub-markets such as the "whole.aale power market,"
Gainesville, 573 F.2d at 294, or the " retail market" and the " bulk power Iroduct market" incitriing " discrete firm requirenents and ocordination sub-markets," 32 PUR 4th at 321, slip opinion at p. 11.
- = 1/ That nuclear p]wer facilities may not be " essential" (Order at p.11) does not contradict the determination in EERC Opinion No. 57 that EPL's nuclear and gas-fired advantages enhance its ability to keep franchises and to take over systems. 32 PUR 4th at 324, 330,. slip opinion at ;p. 15-16, 24.
+
,-,-c.---. - - . , , - . , , . . , . . . _ . _ , . . _ . _ . . . . - ~ - - , ...,m, , , , , ,,....,,,..,..m. . . . . , . . ,~ .m_, , - ~ . . - . , - - , . - .. ,.
- b. GAF's elaboration of the criteria fbr offensive collateral estoppel (at 73749-73753) confirms that Gainesville and EERC Opinion Fo. 57 have collateral estoppel effect here. Both Irior decisions are final and told against EPL on the same litigatal issues as to Wiich relitigation is sought to be p ecluded here. Cbntrary to FPL's contention (EPL's 0::tober 30,1981 Manoranium, pp.
9-10) the plaintiff in GAF could not have easily joined in the trior action for some of the same reasons that the Cities could not have joined in Gainesville:
joinder muld have enlarged, ccmplicatsi, and lengthensi the prior case. See, GAF v. Eastman Kodak, at p. 73751; see also, Cities' September 28, 1981 Reply, pp. 20-27. By the sane token, the GAF decision proves that the Order in Florida Cities does not give rise to collateral estoppel because it lacks finality and for other reasons. See Argunent IA, above.
Bespectfully subnitted, Bobert A. Jablon Alan J. Ibth Ihniel Guttman Joseph Van Ehton By
%/
Attorneys for the lake Wrth Utilities Authority, Novenber 10, 1981 the Utilities C2nnission of Naw Snyrna Beach, the Sebring Utilities Cranission, and the Cities of Law offices of: Alachua, Bartow, Ft. Meade, Hanestead, Yay West, Spiegel & M:Diarmid Kissinmee, Isesburg, Mt. Ibra, Lewberry, St.
2600 Virginia Avenue N.W. Cloud, Starke, Tallahassee, and Vero Beach, Washington, D.C. 20037 Florida, and the Florida Manicipal Utilities Association
FORMER FIFTH RTTACEENT FLORIDA POWER & LIGHT CO. v. F. E. R. C. 12505 e-.
- 1. Electricity o=1 -
FLORIDA POWER & LIGifT ~ ~
COMPANY, Petitioner, e eded c.,nergy Regulatory ( ,
Commission may not compel the trans- ,. ,
- v. mission of energy, it does possess authori- [
FEDERAL ENERGY REGULATORY ty to review transmission contracts and ,F- : .c CO3D11SSION, Respondent. to make , modifications of those contracts upon a determination that terms of such tu=r- (. No. 80-5259. L's er a contract are unjust, unreasonable, un- g ,. . . . United States Court of Appeals, duly discriminstory, or preferential and it [, ._ Fifth Circuit.* also 1 as authority to review any change C zy Unit B in such a contract. Federal Power Act, !- W -
$& 205, 206(a) as amended 16 U.S.C.A. h ---& _ l Nov. 6,198L gg 3:4d, 804c(a). FC. P;.,6 r
E:ectric utility filed petition seeking
- Carriers *=4 r -
review of orders of the Fed 2ral Energy r-- Regulatory Commission requiring it to Under common law, a common carri- c ^- file tariff including a policy statement er is one who holds himself out as en- '
~-
relating to availability of electric trans. gaged in busines of providing a particu- .. mission service. The Coart of Appeals, far service to the public: common carrier , R. Lanier Anderson, III, Circuit Judge, status has a quasi-public character, which [ held that: (1) Federal Energy Regulatory aris+_s out of undertaking to cany for all ;- Commission orders requiring ut:lity, people indifferently. [ _ _ _;_ , which had a policy regarding availability L of wheeling but nevertheless negotiated 3. Carriers *=4 mterchange transmission service agree- k_ . % - . . ments on an individual basis with each A ca rier will not be a e mmon carri- ; ,; municipal utility when approached, to file er where its practice is to make individu- ~J '- [p,f . ; tariff including policy statement relating alized decisions in particular cases as to to availability of electric transmission whether and on what terms to serve. [--i-E.::1 service amounted to compelled wheeling, i WM which was beyond authcrity of Commis- 4. Carriers *=3 [p.X,Er sion; (2) electric utility's policy relating p ---. ._.
" # U.*g actor m determining to availability of wheeling services was .
not a " practice subject to filing require- cader status is public profession or hold- pMc ments of the Federal Power Act; and (3) I"E " *
- I ~'*--3 absent findings of specific anticompeti-tive activities or antitrust violations, Fed. 5. Electricity *=1 p-ALT 3d e-si Energy Regulatory Commission was
< ~.w:c So long 1s an electric utility's tari!f b 7'A without authority under Federal Power Act to compel wheelmg.
and policy statement remain on file, they YNhl are to be treated as a statute, binding $ l'? Reversed. upon utility and purchaser alike. ,5=5-y y :.p;
- Former Fifth Cremt case. Secucn 9(I) of Public + .--d 1 t.aw 9452--October !4.198o. ( ' '- .Q h Synopes. Syllabs and Key %mber ca r.cauon - -
CCPYRIGHT T 1981. by WEST PtJBt.13HING CO.
" ~
The Synopass. SyI:ahi and Key %moer Cas ri. =- -a cauon consutute no part of the opia on of the eurt { , g 9_C
- -- .~
$ s 9
= =. . , -- c.m
.L
^ ^ ~ -: -;
_._..~'_'..... c..-a r-S m
12509 FLORIDA POWER & IJGHT CO. v. F. E. R. C.
- 6. E!stricity c=1 10. Estoppel o=63 Federal Energy Ngulatory Commis. Testimony given by electric utihty sion orders requiring utility, which had a official concerning utility's policy with policy regarding availability of wheeling regard to availability of wheeling serv-but nevertheless negotiated interchange ices did not estop utility from changing transmission service agreements on an its policy, particularly in light of fact that '
individual basis with each municipal utili- there was no indication that Federal En-
, ty when apprms.ched, to file tariff includ- ergy Regulatory Commission had relied ;
ing policy statement relating to availabil- upon such testimony in rendedng its final i ity of electric transmission rervice decision concerning antitrust aIIegations. , amounted to compelled wheeling, which was beyond authority of Commission. , Federal Power Act, $ 1 et seq. as amend- . ed 16 U.S.C.A. ( ~92 et seq. Petition for Redew of an Order of the :
, deral Energy Regulatery Commission.
ee > 7 Statu"es c=219(1) A reviewing court normally shoula Before HENDERSON, ANDERSON adhere to construction of a statute by an and SAM D. JOHFSON, Circuit Judges. agency charged with its execution unless i there are compelling reasons that such R. LANIER ANDERSON, III, Circuit construction is wrong. Judge: S. Electricity c=1 e uestion petitioner Rod Power
& Light Company ("FP&L") asks us to Electric utility's policy re'ating to answer is whether the Federal Energy availability of wheeling services was not Regulatory Commission (" Commission") 6 a " practice" subject to filing mquire- has the authority to compel FP&L to file !
ments of the Federal Power Act. Feder- a tariff including an FP&L :olicy relat. al Power Act. 205(c) as amended 16 ing to the availability of Mectric trans-U.S.C.A. % S24d(c). mission service, FP&L's position is that filing such a tariff in effect would re -
- 9. Electricity e=1 quire FP&L to offer electric transmist. ion !
Absent findings of specific anticom- service to all customers and would con. I petitive activities or antitrust violations, vert it iru a common carrier for such ! Feders! Energy Regulatory Commission service. FP&L argues that this amounts t was without autnority under Federal to compelled wheeling, which is beyond Power Act to compel wheeling. Federal the authority of the Commission.8 The Power Act, @ 1 et seq. as amended 16 Commission, supported by the interve- , U.S.C.A. 792 et seq. nors,8 counters that no wheeling has been i f
- 1. Wheeling may be defined as the " transfer by 2. De intervenors are Cty of Cainesvt!!e. Cty direct transm:ssion or displacement (of) elec- of Starke. C.ty of Hornestead. Cty of Kissim.
tne power from one unlity to anther over the mee. Cty of St. Coud. Cty of Key West. Cry fac21iues of an intermediate utility." Otter Tad of Tallahassee. De Ft. Pterce Utilities Authort. Power Co. v. Unrted thares. 410 U.S. 366. 368, ty, ne Lake Worth Uu!!ues Authonty. De 93 S.Ct. 1022.1025. 35 led.2d 359 (1973L New Smyrna Beach Uulities Comnussion, and The Sebring Utilities Comnussion. Al' are
FLORIDA POR'ER & LIGHT CO. v. F. E. R. C. 1::S10 compelled at all and that it has merely produced by ths smaller utilities. Tha enforced a provirion of its regulations need for smaller utilities to have wau to . specifying the information to be included transmission service has increased in in rate filings. FP&L's grievance arises recent years and, for some, economic sur- ! out of two orders which were issued as a vival may depend on such wa= 8 part of a larger, and still on going, pro-ceeding. Docket No. ER7S-19, et al.a In May,1978, FP&L fibd a rate sched. , We conclude that FP&L has in effect ule for interchange transmission service , been made to assume common canier sta. for the municipal utility of Homestemi, i tus and that the Commission had no au. Florida.' Shortly thereafter, FP&L filed - thority to order the tariff and policy be a secoad such rate schedule for the mu- i filed. Therefore, we reverse. nicipal utility of Fort Pierce, Florida.' i These rate proceedings were consolidated L FACTS with the pending proceeding in Docket ;
. No. ER~S--19, et af. !
FP&L ts the largest electric utility in the State of Florida Mth a service ares On June 6,19 3, the Commissior staff predominantly in the eastern and south- moved to compel FP&L to file amended ern parts of Florida. Together with schedules governing the interchange Florida Power Corporation, Florida's transmission service provided to Home- i second largest elect:ie utility, FPFL's stead and Fort Pierce. TF . aff re-transmission facilities cover nearly all of qu :sted that the schedules be modified to peninsular Florida. Use of these trans- include a company policy, cunciated by mission facilities is frec.uently necessary an FP&L vice president, Mr. Ernest Bi- ' for smaller municipally.ard cooperatively vens, regarding the availability of trans-owned utilities, such as intervenors, to mission services.' This statement of poli-
- obtain electric power to suppionent their ey wcs sworn, prepared testimony filed in own production or to obtain base-load Docket No. ER""-175 as rebuttal to cer-p,wer more economically than could be tain staff assertio m that FP&L had un- t i
c: ties in Ponda with murucipal uulities er the Riversing trutza! Decision and Re;e:d75 Tanff mutucipal utfifty commission for vanous Flon- Avagability !.1:: aations and Nouce of Cance!!a-da munacapatities. tion. 32 Pub.U. Rep. 4th (PUR] 313 (Aug. 3.
- 3. Proceedings it. Docket No. ER73-19. et al., 1975), rehearing derued Optruon No. 57-A.
were iruuated in October.1977, when FP&L Optruon and Order Dennna Reheanns !ssued filed prr posed limitauons on the avadability of (October 4.1979). appeal dismassed sub nom. firm wholesale requiremems service, together Monda Power & Ught Oa v. TERC. No. '9- , with notices of cancellation of such service to 2414. (D.C. Cr Apnl 25. 1980). An trut2al t specfled wholesale customers, arid proposed decison was issued by an administrauve law l increases in the rates for this wholesale re- Judge in Phase II on July 24.19% At the time f quarement service, Locket No. ER78-19. et aL. bnefs were filed in the instant petition. the was btfurcated into Phase !. dealing with the Commission had yet to issue an opinson with tanff avadability restnction and the cancella. respect 1 Phase !!. Lion of service, arid Phase II, dealing with the I increase in rate. The two orders which we 4. Docket No. ER78-325. revtew on this peutiers are not essential parts
! 5.
of either Phase I or Phase II. and touch on Docket No. ER78-376. matters subsidiary to the quest 2ons of those Phases. Before issuing the two orders now 6. The staff did not request .that tne schedules under review. the Commission issued its Phase w M as a tM Wnt we (**JA"1. pp. I decision in Opmion No. 57, Opiruon and Order ** - e 9 e
1*S11 FLORIDA POWER & LIGHT CO. v. F. E. R. C. duly disc.-iminated amorg potential users 4. The rate for such service is suffi. of its transmission services.? Mr. Bivens cient to compensate FPL for its listed four criteria on whien FP&L condi- costs. tions the availability of transmission ' sernces: (J.A. p. 2207, quoting from Docket No. ER77-175, transcript p.118). The staff Q. Does the failure of FPL to file a further requested that FP&L be required ; generally applicable transmission to include titis statement of policy in all tariff reflect any intention by FPL future transmission service agreements. to preclude neighboring utilities from obtaining transmission service? The Commission deferred action on the A. Most emphatically not. We are staff motion for appmximately a year i willm.g to provide transmission ser- and a half. During the mterim. FP&L vice when*
- filed 16 additional interchange transmis-sion service schedules, each of which was L The specific potential seller and accepted for filing, suspended, and con-buyer are contractually identified:
solidated into Docket No. ER7S-19. et 448
- 2. The magnitude, time and dura- Sorne of these filings were to amend pre-tion of the transaction are specified viously filed rate schedules. Each of prior to the commencement of the these schedules provided for interchange tansmission: transmission service at the identical, post-
- 3. It can be determined that the age-stamp r ate,' with supporting evi-transmission capacity will be availa- dence based on cost data from the same ble for the term of the contract and 1978 test year.
- 7. Docket No. ER7*-175 is a proceeding anstng cocket Castomer from a proposed rate offered by FP&L for long. ER N 162 Homestead.11onda term transnussion service to the Utilities Com. ER N 171 Ft. Pierca. Monda mission of New Smyrna Beach. Fbnds, under ERNt?2 M. Pterce. Monda which FP&L would transmit New Smyrna's ERN352 New Smyrna Beach. Monda owned share of power and energy from Monda ERN52 Jacksonvide. Monda Power Corporauon's Crystal River No. 3 nucle- ER N 522 Ft. Pierce. Flonda ar umt. Because of differences between this ERN554 New Smyrna Beach, Monda transmission service and that offered to Home- ER&563 the Worth. Monda stead and Fort Pierce and differences m sup. ERN374 Monda Power Corp.
portmg data. Docket No. ER77-175 was nut ER8o-o New Smyr'na Beach, Monda consolidated with Docket No. ER78.-19. et al ' An imtial decision m Docket No. ER77-175 was FP&L attacked the Commission's suspension issued November 23.1978 and at the time the order in four of the interchange transtmssion bnefs were flied in tne instant peuuon. the les lidatM. Wy, Docket Nos. Commission had not yet reviewed that mitial ER78-325. 478. 508 and 566. The District of dec:sion. Columbia Circutt has upheld these suspension orders. 17onda Power & Light Ch v. FERC. S. De addiconal 16 schedules are as follows: 617 F.2d 809 (D.C.C*r.1980). I
- 9. De FERC's bnef defines a postage stEmp !
Docket Customer transmission rate as the same umt rate per f ER N 73 the Worth. Monda kilowatt. regardless of distance, based on the ER*W '*a mpa Cectric % average cost of wheeling power anywhere over ER%527 Homestead. Monda a transmsssion network. (FERC bnef, p. 6). 3 ER % 566 vero Beach. Monda 10. FP&L asserts ut its bnef that there were
- ER W 567 Tampa Cectric Co. - vartauons in the services provided under the ER N 44 Tzmpa Cectric Ca. agreements. For example, some agreements t
e e
.ms _-
e g _ .-- , - _ _ . . _
FLORIDA POWER & LIGHT CO. v. F. E. R. C. 1:51' The Commission granted the staff's FP&L had objected vociferously to the motion in an order issued December 21, Commission's requirement that Mr. Bi-1979.88 The Commission ordered FP&L vans
- statement of policy be f.icluded in to " file a tariff, in substitution for the 18 the tariff. The Commission held that separate filings. ., incorporating the this policy statement was a " practice" provisions of the several transmission ser, within the meaning of f 205(c) of the vice agreements at issue, includir.g the FPA and $ 35J(a),18 C.F.R. $ 35.1(a) four criteria governing FP&L tmnsmis. (1980), of its regulations. It concluded ;
sion service availability which were recit- that because FP&L intended the Com-l ed in the testimony of Mr. Ernest Bivans mission to rely on this poh,ey statement ir - in Docket No. ER77-175. " (J.A.,p. Ckat No. ER77-175 FP&L should have
- l f
- n.,,12).
. The Commission justified the
- anticipated these availability criteria quirement that a tariff be filed in heu of would be published and given effect. Be- I m tvidual cause the policy statement was from j agreements on several FP&L itself, the ine!usion of the state- I^
gmunds. The objectives of Section 205(c) ment in the tariff would in no way ex-of the Fede si Power Act ("FPA"),16 pand F4 &L's transmiss en service obliga. U.S.C.A. f S24d(c) (West 1974)," and Sec- tian, and thus cd not amount to com-tion 35.2 of its Regulations, is C.F.R. pelled wheeling. 9 35.2 (19S0), as weil as administrative l efficiency, would better be served v.t h a rP&L timely filed a petition for i rehearing of th:.s order. During the in-s:ng:e ta-iff than by the maintenance of terim between the original order and the ! numerous service agreements. The simi-larity of the filed agreements and the Commission's decision on rehearing, proximity of the filing dates indicated FP&L filed three additional interchange l transmission rate schedules.8 The Com-that, as a matter of fact, the policy of mission similarly accepted these filings, availability did control FP&L's decision susoended each for one day, and consoli-af whether to grant requested transmis- dated each with Docket No. ER73-19, et t sion. A'so, because a postage stamp rate al The Commission denied rehearing.84 is involved with each individual agree- In the only amplification of the first or-ment, FP&L would be required in the der, the Commission refused to state i future to demonstrate that any service at whether FP&L's policy statement was a different rate to a new customer would one for only interr.hange transmission not be unduly discriminatory, making the service or for transmission service in gent filings a tariff service in substance. eral. provided for emergency service for 72 hours, 11 See footnote 22,2nfra. for the text of Secdon i, while the Homestead and Ft. P!erce agreements 005(c). I prended for emergency service for 30 days. (FP&L initial bnef, p. 8.) The Jomt Appendix 13. New Sm>Tr. Beach Flonda, Docket Na does not contaan copies of these agreements. ERSO-141; Tampa E3ectne Co., Docket No. but none of the partres contest this character. ERS0-156, and Orizndo, Flonda. Doexet No. l izat;en. The Commission fomd the service ERSO-199. ; agnements "si.*?
- 14. Order Denymg Rehearing. Accepung for Fil. I
' 11. Order Direcung the Subm ssion of a Trans- Ing and Suspending Rate Schedules and Deny- I mission Tanff in Subsutuuon for Indvidual ing Mouon for Extensson of Time.' Docket No.
Rate Schedules Docket No. ER78-19, et st. ! ER*3-19. et al issued Febnaary 6.1980. t issued December 21,1979. l 4 8 i l O
~ .% .+ , , -
7 CS13 FLORIDA POWER & 1IGHT CO. c. F. E. R. C. IL CO .!!.:ISSION AUTHORITY TO posed the oblig tions of a common carrier ORDER THE TARIFF AND POLI- upon utilities with respect to transmis-CY STATEMENT TO BE FILED sion of electricity. ' The Congress refus-The crux of this contmversy turns ed to pass these bills and, as evidenced in i upon what authodty the Commission has the Senate Report of the FPA, chose to ; under the FPA to order the transmission leave the decision on wheeling to the ' of electricity, and what authority it has " voluntary coordination of electric facili- ! to contal the format of its filings. We, ties." S. Rep. No. 621, 74th Cong.,1st therefore, begin with an analysis of the Sess., at 19. ' FPA. The FPA, as originally enacted, did not permit the Comnussion to compel [1] While the Commission may' , wheehng nor did it require utilities to not provide wheeling upon request.', The compel the transmission of electricity, it i legislat2ve history of the FPA makes does possess the authority to review clear that Congress did not intend the ransmission contmts under Ma) aM Commission to have power to compel to make modifications of those contracts wheeling. See 0::er Tail Power Co. v. upon a determinat:on that the terms of United States, 410 U.S. 366, 375-6, 93 such a contract are unjust, unreasonable, S.C t. 1022, 1028-1029, 35 led.2d 359 unduly discriminatory, or preferential (1973), as well as the dissent at 383-387, New York St. ate Sectrie & Gas Corp. v. 93 S.Ct. at 1032-.1034, for a thorough FERC, supra: Richmond Power & Light discussion of the relevant legislative his. of Richmond, Indiana v. FERC, 574 F.2d tory of the FPA: see also New York at 620. It also has the authority to re-State Sectrie & Cas Corp. v. FERC,638 view any change in such a con mt under F.2d 388 (2d Cir.1980), U.S. appeal pend- 5 "05. In performing these functions ing- Richmond Power & Light of Rich- with respect to a wheeling contract. mond, Indiana v. FERC, 574 F.2d 610 though, the Commission must he especial-(D.C.Cir.1978). Bills introduced in Con- ly canful not to overstep its authority gress, but never enacted, would have im- and require the involuntary wheeling of
- 15. In November,1978. the Public Utility Regu- econonuc loss for the transnutting utility. (4) latory Policies Act. Pub.1 No. 95-617,92 Stat. will not place an undue burden on the transnut-3136 (1978), amendzng the FPA. expanded the . ting uulity. (5) will not unreasonably impair the Commission's powers to include the authonty reliability of the transmittmg utility, and (6) to compel wheeling in certain ctrcumstances will not impair the ability of any electne unlity Under new (( 211 and 212 of the FPA.16 affected to render adequate service to its cus.
U.S.CA. ${ 824j and 824k (West Supp.1980), tomers. Neither the Comnussion nor the Com-the Commission may require one ut21ity to pro- massion's counsel attempt to jusury the orders vide transnussion services upon applicauori of now on review under these pronstons smce the a second utility if certain substantive and pro- procedures spectied m the new $$ 211 and 212 cedural requirements are rut. For example, have not been complied with. under i 824j(a), an electMc untity may obtain an order requanng a second utility to wheel if. 16. S.1725, 74th Cong.,1st Sess., $ 213. pp. after notice and a heanns it is determaned that 105-106 had the following prousion: such service (1) is in the public interest, (2) It shall be the duty of every public utility to conserves a significant amount of energy, sig- furnish energy to, exchange energy wuh. and ntficantly promotes the effic:ent use of factities transmit energy for any person upon reason-and resources, or improves reliability of any able request therefor . electnc uulity system. (3) is not likely to result HR 5423. 74th Cong Ist Sess., i 213 pp. in a reasonably ascertainable uncompensated 104-105. had an identical provtsion. '
l FLOP.IDA POW"r?R & LIGHT CO. v. F. E. R. C. 1514 electricity, absent compliance with the the Commissicn's authority to reject un-new Gs 211 and 212 of the FPA. reasonable rate proposals and to set rea. In two recent cases, the courts have sonable rates included the power to con. rejected ingenious arguments which dition appmval of the proposed rates on would have established the Commission's involuntary wheeling. The District of authority to require wheeling by indirect Columbia Circuit concluded the Commis-means. In New York State E7ectrie & sion had acted pmperly, stating: , Gas Corp., the Commission ordered the If Congress had intended that utilities deletion from a wheeling contract of a could inadvertently bootstrap them-provision prohibiting a municipal utility selves into common-carrier status by from selling wheeled power outside its filing rates for voluntary service, it city limits. The Commission attempted would not have bothered to reject man-to j tstify this order on the ground its datory wheeling in favor of a call for order only removed a restriction on the just such voluntary wheeling. use of wheeled power and that no wheel-ing was compeIIed. It attempted to dis- 574 F.2d at Co. associate its removal of the territorial Counsel for the Commission point to restriction from the amc>unt of power the four p ssible rationales for the decision at wheeling utility would ultimately trans- issue: first, that the orders at issue in mit. The Commission contended that the fact do not constitute compelled wheel-wheeling utility had not yet reached its ing; second, that the decision is justified full capacity allocation under the con. E.ecause FP&L's policy statement consti-tract, and therefore, remaval of the geo- tuted a " practice" and thus was properly graphic restriction would not result in required to be filed as part of a tariff involuntary wheeling. The Second Cir, under the statute and regulations; third, cuit did not accept this an.slysis. Finding that the decision is justifiable as a reme- , that the Commission's orc'er would com- dy for FP&L's past anticompetitive activ-pel the utility to transmit an amount of ity; and fourth, that FP&L is estopped power over and above that contracted from changing its policy of availability, for, the Second Circuit concluded that the We discuss each argument in tunt? Commission had exceeded .its authority . by ordering involuntary wheeling. A. Do the Commission's Orders Re-In Richmond, a utility attempted un- quire Inv luntary Whaeling? ' successfully to convince the Commission The Commission reasoned in the deci-that rutes proposed in a national, volun. sion on review that its order in no way tary program to transmit ccal-generated expanded the' transmission service obliga-power from the mid-west to the oil-short tion which FP&L has voluntarily under-east were unreasonable because the utili- taken. In other words, the Comrmssion ties had submitted rates only for volun- stated it had done nothing which requires tary wheeling. The utility argued that FP&L to wheel involuntarily since the
- 17. Because some service agreements were ing to offer wheeling on a tanff basas. Neither unexecuted. the Ccmnussion stated that the the Commission nor its counsel explained how service provided to those customers is indistm-this cou d occur. We find this statement by guishable from that avas!able under a tariff. the Comtrussion in the orders on review puz.
We fail to perceive how the failure
- to !Ue exe. r.fing and unconymemg.
cuted contracts indicates that FPSL was wtll-e 0
q 1:315 FLORIDA PO%'EP> & LIGHT CO. v. F. E. R. C. tariff and policy ortiered to be filui had 421, % L.Ed. 567 (1936); State of Wash-been adopted voluntarily by FP&L. The ington ex mL Stimson Lumber Co. v. Commission's counsel glosses this justifi. Kuykendall, 275 U.S. "07, 48 S.Ct. 41, "2 cation by insisting that there has been no L.Ed. 241 (1927). Common carrier status , ecmpelled wheeling because FP&L has has a quasi-public charactar, which arises j given no indication it desires to change . out of the undertaking "to carry for all 5 its policy. Commission's counsel at oral people indifferently . National As- ; argument insisted that the question be- sociation of Regulatory Utility Commis-fore this court is not whether the Com- sioners v. FCC 533 F.2d 601 (D.C.Cir. mission may requin transmission service 1976). A carrier will not be a common , if and when a customer in the future is carrier when its practice is to make indi- i , refused wheeling services or whether th* vidualized decisions in particular cases sa Commission has the authority under to whether and on what terms to serve. f "06(a) to find the tariff unjust and Ibid.; Semon v. Royal fndemnity C4.,279 , unreasonable or to pass on any proposed F.2d 737 (5th Cir.1960). The controlling change under $ 205(d). The Commis- factor in determining carrier status is the sion's counsel maintains that these am public profession or holding out. Semon questions for another proceeding if and v. Royal Indemnity Co., supra: 13 Am. when the Commission takes the foregomg Jur.2d, Carriers, b 2. The Commission action. Commission's counsel asserts that made no findings in this regard, and did ' all that has been done is to require FP&L not rely upon the common law rationale; to file the tariff and policy as an infor- accordingly we express no opinion upon mational aid both to the Commission and the issue of what circumstances might to FP&L's potential customers. invoke the doctrine of common carrier We believe the Commission has failed status established by common law. , to perceive the thrust of FP&L's objec-l tion. FP&L does not complain that the (5] Several remarks are appropriate l Commission has at this time issued an in order to understand whether the Com-order requiring it to provide transmission mission's actions amount to compelling service to a particular applicant to which involuntary wheeling. First. the parties it otherwise would not have wheeled. In- agree as to the effect of filing a tariff : stead, FP&L objects that the Commis- together with the policy statement. ! sion's actions have imposed upon it an FP&L would have to abide by the terms ; obligation to provide transmission service of the tariff and policy statement in of- ' beyond that which it has voluntarily as- fering transmission service in the future. ' sumed. FP&L objects that in the future So long as the tariff and policy remain on i it will be required to provide wheeling fue, they are to be treated as a statute, , for any utility requesting tariff service. binding upon FP&L and the purchaser j In effect, FP&L complains that it has alike. Northwestern Public Service Co. I now been made a common ca'rrier. v. 3fontana-Dakota Utilities Co.,181 F.2d 19 (8th Cir.1950), aff*d., 341 U.S. '.'A6, 71 l- [:-4] Under common law, a common S.Ct. 692,95 L.Ed. 912 (1951). Because a ; carrier is one who holds himself out as tariff has been filed, FP&L may not devi- i engaged in the business of providing a ate from it in entering interchange trans-particular service to the public. United mission service agreerr.ents with munici- , States v. California,297 U.S.175,56 S.Ct. pal utilities without filing a change in the
FLORIDA POWER & LIGHT CO. v. F. E. R. C. 12S16 tariff. These utilities requesting wheel-ing under the terms of the tariff would S.Ct. 368,100 led. 388 (1956). The utili-be entitled to remive transmission service ty was willing to wheel power to a second so long as the availability criteria are customer but at higher rates. The second customer petitioned the Comnussion, complied with.se In other words, FP&L claiming undue discrimination. The would be required to serve all qualifying wheeling utility made no argument that customers the availability until the Commission criteria. A customer changes re- it was free to pick and choose to which fused such service could petition the customer it would wheel. There was no t Commission to find that FP&L's practice issue of involuntary wheeling. Instead. j with respect to its policy of availability is the issue was the proper remedy for dis-unduly discriminatory under 9 206(a) of crimination a in rates when one contract is the FPA. fixed rate contract not subject to The parties, however, disagree as to change by the Commission exmpt by a
$ 206(a) proceeding. In this regard, the result of FP&L's having filed 23 indi. FP&L has not argued that if more than vidual schedules with postage stamp one wheeling agreement is filed, the rates without a tariff filing. The Com. Commission is precluded from determin-mission, citing Town of Norwood v. ing that a difference in rates would con-FERC, 587 F.2d 1306 (D.C.Cir.1978), stitute undue discrimination. FP&L is maintains that even without a filed tariff and policy statement, a utility which was concerned to preserve its right in the refused wheeling services in the future - plicants. future to refuse wheeling servias to ap-No case is cited, and we have by FP&L could petition the Commission found none, in which a utility which was under 206(a) to find such a refusal to be refused wheeling services brought a peti-discriminatory. Thus, 'the Commission tion under S ll06(a) for the Commission to reasons that no new restrictions have find such a refusal discriminatory where '
been placed on FP&L by the filed tariff no tariff was on file.2' We have serious and policy. In other words the Commis. sion argues, relying upon Town of Nor- doubts that such a petition would be sue-wood, that the fact of the 23 individual cessful in the absence of a tariff. In schedules already places FP&L *in the S.Ct. FPC r. Conway Corp., 426 U.S. :yll, 96 , same position as if a tanff had been filed. 1999, 48 led.2d 626 (1976), the However, Town of Norwood does not so Supren e Court held that the Commission hold. There an electric utility had en- may mnsider rstes over which it does not ' tered a wheeling contrset with a fixed have jurisdiction in considering whether proposed rates over which it does have rate provision, rate. See Unitedbarring Gas Pipe anyLinechange Co. v. in the jurisdiction are discriminatory. In strong , dictum, however, the Supreme Court in-Mobile Gas Service Cog.,350 U.S. 332,76 dicated that the Commission does not ,
} S.Ct. 373,100 L.Ed. 373 (1956); FPC v.
have authority to remedy any discrimina- l Sierra Pacr/ic Power Co.,350 U.S. 348, 76 '- tory sction by requiring a change in rates 18. The form of a tanff as specified in the Com. tions of avadability. (See Comnussion bnef of , mission rules includes conditions of avadabili. ty. Sept. 9.1980, p.14.) i 18 C.F.R. $$ 35.2 and 154.38(bL Thus, by ordenns Mr. Bivan s statement of avadability 19. Nor have we found cases where appiicants policy to be f!!ed, the Comtrussion has incorpo. wtuch were refused any other service have rated FP&t.'s policy as the statement of condi' brought a claim of undue disentrunauon to the Comtrussion where no tanff was on f!'e. i I I L
12517 FLOP.8DA POWER & LIGHT CO. v. F. E. R. C. over which it has no jurisdiction. The and policy of availability to deter =ine
~
~
Court stated there: whether any feature is unjust, unreason- l The prohibition against discriminatory able, unduly discriminatory, or preferen-or preferential rates or services im- tial. If such a determination is made, the posed by 6 005(b) and the Commission's Commission may adjust the tariff and power to set just and reasonable rates Policy. The Commission in the orders on under 206(a) are accordingly limited review clearly ind,icated dati ,n Ge fu. , to sales " subject to the jurisdiction of ture t may require FP&L, either m the Commission," that is, to sales of Docket No. 77-175 or in some other pro. electric energy at wholesale. The ceeding to amend its taiff if it is found Cor. mission has no power to prescribe to k mapst or unreasonable. - 2210.) This would include FF&L,M, p s pohey
, the rates for retail sales of power com-panies. Nor, accordingly, would it f availability. Thus, if there is a tariff, i have power to .amedy an alleged dis- Ge Commission could m the future alter ;
. cdminatory or anticompetitive rela. FP&L,a poh,ey to one undesired by -
* **"*I'* *"t' tionship between wholesale and retail rates by ordering the company to in. We agree with FP&L that the Commis-crease its retail sales. sion's order does in effect impose common 126 U.S. at ?!6-77,96 S.Ct. at 2003. Any carrter status upon FP&L. While the applicant which was refused wheeling tariff is on file, FP&L would be obligated services by FP&L would have to over- to provide the tariff service to all custom-come this dictum in bringing a 5 006(a) ers. In a significant sense, its duties and petition before the Commission, and also liabilities have changed. Although would have to overcome the legislative FP&L had a policy regarding the availa-history and case law indicating that the bility of wheeling, FP&L, nevertheless, -
Commission is without power to compel negotiated interchange transmission ser- I wheeling.:" vice agreements on an individual basis with each municipal utility when ap. [6] The parties do not dispute that in preached. There is no indication in the the future, if FP&L wishes to alter its record that FP&L has voluntarily agreed policy of availability, it will, if there is a to become a common carrier. There is no treiff, have to follow the 205(d) and (e) indication that FP&L has voluntarily procedure of filing the proposed change agreed that any change in the terms of with the Commission. The Commission its policy, or any interpretation thereof, under this procedure may investigate should be submitted to the Commission such a change and reject it as unjust and for its appmval. The imposition of com-unreasonable. FP&L, thus, has lost the mon carrier status on FP&L. which the freedom to alter its policy of availability orders at issue accomplish, is precisely the with respect to wheeling. Moreover, the authority which the FFA denies the Com-parties also agree that the Commission r ission. The legislative history of the under 5 206(a) would have the authority FPA makes clear that the Commission ! to investigate sua sponte FP&L's tariff lacks the authority to require electric i i'
- 20. te Commission and intervenors complam ing precludes the intervenors from bnessng the that FP&L is arguing for license to disenmmate appropnate antitrust action if FP&L*s actions ;
in offenng wheeung serwces. Of course, noch. warrant such. g t
F1.ORIDA FOWER & LIGHT CO. v. F. E. R. C. 1:319 utilities to provide wheeling even on a i reasonable request. Accontingly, we con- 18 C.F.R. s 35.1(a) (1980).# A policy of I c!ude that the Commission lacked statuto- availability has been held to be a "prac. t tice," subject to the filing requirementa, ry authority Lion." to issue the orders in ques- with respect to a pipeline tariff. See t Michigan-Wisconsin Pipeline Company, B. 34 FPC 621, 626 (1965).# As explained + Is the availability policy a "prac, above, a practice made a pan of a filed
- tice" within the meaning of tariff, is subject to the Commission's 005(c)? Hght to review such practice and to pass on changes within it." A reviewing -
[T,8] A second ground for the Com- ;
- mission's decision was its conclusion that cour' normally should adhere to the con- ;
FP&L's availability policy constituted a struction of a statute by an agency .
" practice" within the meaning of i 335(c) charged with its execution unless there are compelling reasons that such con-of the FPA and $ 35.1 of its Regulations. struction is wrong. ECEE v. FFJC, 611 21.
The Comnussion. in refecung FP&IJs argu-ment that Otter Tad had interpreted the FPA to (c) Under such rules and regulauons as the prohibit compelled wheeling, stated that Otter Comtession may presenbe, every public uul-Tad had noted that terms and conditions gov- sty shall file with the Commission withm ermng transnussion services are subject to such tame and in such fonn as the Comtrus-Commission oversight, cung to 410 U.S. at sion may designate, and shall keep open in converuent form and place for public mspec. 3&77. 93 S.Ct. at 1028.-1030. Die Comnus. t2on schedules showing all rates and charges sion masconstrues Otter Tait la ?crer Tad the for any transnussion or sale subject to the Supreme Court was concerned in part with the junsdiction of the Commission, and the clas-question of whether the antitrust remedy or, stficauons, pracuces, and regulauons affect. dered by the distnct court tonflicted with Com. ing such rates and charges. together with all mission junsdiction msofar as the distnct court j contracts which in any manner affect or re- ' had ordered both wheeling and interconnec, late to such rates, charges, classifications, tions. The Supreme Court held there was no and services. conf!!ct with respect to wheeling smce the 18 C.F.R. f 35.l(a) (1980) reads in pertment Commission had no authonty to compet wheel. M ing. 410 U.S. at 375-76. 93 S.Ct. at 1028-1029. Every public uu!ity shall file with the Com-De part of the decision eted by the1Comtrus, nussion and post, in confonmty with the n-sion dealt with the Supreme Court's discussion qturements of this Part, full and complete , of possible conflict with the Comrmssion's au- rate schedules, as defined in { 35.2(b). clearty thority to ordtr interconnections. The Su- i
~
and speckany sening fonh au ratu and preme Coun noted that " future disputes over c argu r any transmina n r sa dec. interconnections and the terms and conditions nc energy su ect to de junMon d Ws ' , govermng those interconnections will be sub- Commission. the classifications practices, ject to Federal Power Commission perusal . na n and a ns ahg such ratn ad L 410 U.S. at 3%77. 93 S.Ct. at 1029. The " *" * ""*#****** ""Y Comnussion has the authortty under 5 202(b) of the FPA to order physical connection of
* * * "** M transmission faclities. Thus, the c:tation re- * '** ****"
- tied upon by the Commission referred to its # " ^#* ***' i
. suthonty over interconnecuons. for which '
- f" thes e is a statutory basis, and does not support 23.
Provisions of the Natural Gas Act are to be i its actions with respect to wheeling. t read in pan matena mth analogous provtstons
~
- 22. Section 20S(c) of the FPA. 16 U.S.C.A. of the FPA. FPC v. Sierra Pacinc Co supra. .
$ 824d(c)(West 1974). reads in full: 24. See discussion in Part !!.A. of this optruon. t
1:519 FLO?.'DA POWER & LIGVIT CO. v. F. E. R. C. F.2d 554, 563 (5th Cir.19S0). In the tion or anticompetitive activities by a
. context of wheeling, the FPA's legisla- utility. Richmond Power & Light of tive history is a compelling reason why Richmond, Indiana v. FERC,574 F.2d at we may not defer to the Commission's 623. On the other hand, the Supreme interpretation. Having held that the Court in dictum has indicated tnat the i FPA prevents the imposition of common Commission may not take action to reme- I cartier status on utilities for wheeling dy anticompetitive conduct when it lacks f services, it would make no sense to per- authority to take such action. In FPC v. i mit the imposition of this status by the conway Corp.,426 U.S. 51,96 S.Ct.1999, j device of requiring a utility r.o file any 48 L.Ed.2d 626 (1976), the Coun stated: ~
1 policy of availability as a practice. It is . reasonable to assume that any well-man- g g 7 aged utility will have a policy governing er c mpanies. Nor, accordm. gly, would the availability of wheeling services and g
't have power to remedy an alleged will act on this poliev. Giving the Com- , g mission the authurity' to order a policy of dj.ser: minatory or ant 2 competitive rela- g
- nship between wholesale and retail availability to be filed as a " practice.,
could vitiate Congress' desire to leave rates by ordering the company to in- ; utilities free to make wheeling decisions. crease its retail rates. g 426 U.S. at 56-77, 96 S.Ct. at 2003. I
. Moreover, the Second Circuit in New C. Anticompet:tive Remedy. York ETec:iic & Gas Corp. suggested that
{9] The Commission's counsel and in- the Commission may not crder wheeling, tervenors argue that the Commission jus- in the absence of compliance with 211 tified, in part, it:. requirement that and 212, even upon a finding that a utili-FP&L's sworn policy be included in the ty has engaged in anticompetitive activi- 5 tariff as a remedy for FP&L's history of ties in violation of antitmst policy. anticompetitive conduct and as part of the Commission's duty to implement this In the instant case, however, we need nation's antitrust laws. (See Commis, not resolve the question as to what power sion's brief, p. 25). the Commission may have to remedy an- , titrust violations, since we conclude that i We note that tle Supreme Court in the Commission did not rely on this rn- l Otter Tail clearly held that a district tionale. There can be little doubt that ; court in an antitrust suit has the authori- FP&L's business conduct in the past has ; ty to require whee'ing as a remedy. The not been exemplary in that it has been ^ authority of the Commission to order found to have engaged in a conspiracy whccling as an antitrust remedy, though, with Florida Power Corporation to divide ! is more questionable. 5 The District of the wholesale power market in Florida. l Columbia Circuit has suggested in dictum Gainesville Utilities Department v. Flori- { that the Commission may order wheeling da Power & Light Co.,573 F.2d 232 (5th ! based on specific showings of discrimina- Cle.), cert. denied, 439 U.S. 966, 99 S.Ct. 1 I
- 25. In noung that the Comm:ssicn's authonty to are aware that the Comm2ssion has a duty to !
order wheeling as a remedy for alleged anu. consider anticompeuuve effects of actMties tw ! competzuve acuwty is open to some doubt. we quinng Commission approval ! t i I
?
1 1 4
FLOP.!DA POWER & LIGHT CO. v. F. E. R. C. 1*.S20 I 454. 55 L.Ed.2d 424 (1978). But the Com. Florida markets, the Commission did not - mission neither relied upon the ar.ticom- make any finding in the order on revier ' petitive findings in Gainesville, nor did it that any specific anticompetitive activi. make any findings of anticompetitive ac- ties or antitrust violations had occurred. I tivities or violations in the orders on re. Nor did the Commission find any anti-i view. Instead, it relied upon the fact trust violation in Opinion No. 57. Indeed, that FP&L possessed monopoly power Opinion No. 57-was prefaced with this over wholesale and retail markets in warning: Florida, and that filing the tariff would > have "procompetitive effects." The Commission acknowledges that it - is not specifically responsible for en-
- The Commission in the instant orders forcing the Sherman Act or any other did mfer to F:orida Power & Light Co., of this nation's antitmst laws. And we :
Opinion No. 57, 32 Pub.U. Rep. 4th wish to emphasize that in evaluating [P.U.R.} 313 (Aug. 3,1979), appeal dis- the anticompetitive effects of a pro.
=issed sub nom. Florida Power & Light posed rate change and in making find-Co. v. FERC, No. W2414 (D.C.C;r. April ings with respect thento, we do not 25, 1980), an opinion issued with respect. make findings that violations of the to Phase I of Docket No. ER78-19, et al.as antitrust laws have occurred. Instead, The Commission noted that in Opinion it is our obligation to evaluate the pub.
No. 57, it had found certain proposed lic policies expressed in Federal anti-availability restrictions in FP&L's whole- trust laws and to reflect those policies sale power tariff to have serious anticom- in the conduct of our responsibilities petitive effects. It further noted that in under the Federal Power Act. This we Opinion No. 57, it had found FP&L to have endeavomd to do in the instant have monopoly power over wholesale and case. retail sales and that the availability of interchange transmission service had a (J.A., p. 2123, 32 P.U.R. 4 at 315, only bearing on competitive relationships first emphasis supplied, footnote omit-within the relevant markets. The Com- ted). The fact that Opinion No. 57 con-mission then reasoned in the onders on cluded that FP&L had monopoly power i review that the presence of the policy and that the proposals them under re-l statement in the tariff would have a defi- view would have anticompetitive effects
- nite procompetitive effect. While the does nct amount to a finding of any j
reference to Opinion No. 57 indicates a specific anticompetitive activity or of any concern over FP&L's dominance in the antitrust violation.27
. 26. See footnote 3 supra.
nopolize, ibid nndings not made by the Com. mission in the orders on review or in Opmion
- 27. Mere possession of market power withcut _ No. 57. Nor can an antitrust violation be found more sucn as an attempt to restram trade or to on the basis of a finding that a proposed whole.
monopolize. is not unlawful. Standard Oil Ca sale tanff would have an anticompetitive effMt of New Jersey v. f./mted States. 221 U.S.1. 31 without a Mnding of anticompetitive intent or S.Ct. 502. 55 led. 619 (1911); Byars v. RIutY purpose. In a $ 2 Sherman Act action for C;ty News Ca. 609 F.2d 943. 853 (6th CIr. 4 monopoltzms, it is necessary to show that mo. 1979). De additional element may be an at. nopoly power has been coupled with a purpose , tempt to restrain trade or an attempt to mo. or intent to exercise that power. f/nited States } 1 3 4 G 4 6 e e a -. ,.e. -- - . - -n., , - > - -
,.n- - , , -,,--_+,,,,m.--n--y . , - , - - -
--y , ,
12r!1 FLOP.lDA POWEP. & LIGHT Co. v. F. F R. C. A close reading of the orden on review is nothing in this record indicating that as well as Opinion No. 57 convinces us the Commission has relied upon FP&L's that the Comnussion did not issue the testimony. Amo::g the many forms of - orden in question as a remedy." In- equitable estoppel is the principle which stead, as we read the orders, the Commis- imposes an obligation on a penon to !!ve l f sion was attempting to foster competition up to his representations where inequita-in the Florida area. While we deem this ble consequences would result to persons l t' a laudable goal, we conclude that, in the having the right to raily, and who ih good . l absence of findings of specific anticom- faith did rely, on the representation. See i I petitive activities or antitrust violations, 3fitchell v. .ieu:a Casualty & Suncy Co., - the Commission is without authority un- 579 F.2d 342. 348 (5th Cir.1978). The
' der the FPA to compel wheeling. We Commission has not rendend its final pretermit decision on whether the Com decision in Docket No. ER77-175. We do !
m'ssioa has authority to compel wheeling not even know whether the Commission I
- as a remedy for specific findings of anti- has given credence to Mr. Bivans' testi. '
competitive actisities or antitrust viola- ,ony, tions. Nor do we understand the Commis- [ sion's conclusion that FP&L could have i D. Is FP&L Estoppd from Changing anticipated nothing other than that the g Policy? policy would be published and given ef- ? [10] The Commission further rensoned fect. L'nder the FPA, FP&L could ras-that the policy statement by Mr. Bivans sonably have anticipated that it could was given to rebut antitmst allegations choose, absent any violation of the anti-made by the staff in Docket N'o . ERT - trust laws or 6 205(b), to whom it would .( 175 and that it was undoubtedly intended wheel power. Accc.dingly, when it gave that the Commission would rely upon its testimony, it could assume that it that statement in reaching a decision in could interpret, and even alter, its policy that docket. The Commisston concluded of availability without prior approval that FP&L could have anticipated noth-~ from the Commission. Such an assump- , ing other than that the availability crite- tion does not indicate untruthfulness on ria would be given publication and effect. the part of Mr. Bivans or any bad faith Insofar as the Commission was relying by FP&L. There is nothing in the record upon a form of equitable estoppel, there to indicate that FP&L was being any- !
- v. Cn/Mth. 334 U.S.100. 68 S.Ct. S41, 92 t.Ed. edy in order for us to ascertaan the reawnable- f s
1236 (1948): ' Serkey Photo. fac. v. Eastir,an ness of its action. In the orders on review the a Commission stated. "We also four.d (in Optruon
- Kodak Co 603 F.2d 263. 274 (2d Cir.1979). No. 57] that the availability of interchange cert. derued. 444 U.S.1093.100 S.Ct.1061. 62 transmission services, at issue here, did not L.Ed.2d 783 (1980).
significantly Emirush [FPUs monopoly) power: 1 however, these sernces do have a bearing on i
- 28. Insofar as the C:mmassion beneved these {
orders would be appropriate remedies for anu- compettuve relationships within the relevant enarkets." (J.A.. p. 2209.) If availability of j compeuuve actinties or antstrust notations. it r failed to r.ake appropriate nndings of such interchange transtmssion does not sag:nScantly acuvities or notations. Nor did it proude any d;rnimsh FPUs monopoly power. this court is l explanauon as to how ordenng t!us tariff
- led. left with some questaon as to whether wheeiing .
with its poucy statement, would provide a rem- would be an appropnate antitrust remedy. f I t k d
/
e
7 FLOPiDA POWER O LfGHT CO. v. F. E. R. C. 12022 thing other than comp:eteiy truthful in For the foregoing reasons, we RE-its testimony" . VERSE. i I
- 29. Comnussaon's counsel cites several cases for ny proposing a merger votuntartly proposed as l, the proposition that regulatory agenctes may a condicon for approval of the merger a spea-bind parues to representauons made in support fled allocation of costs. The FPC meluded this of requests for relief. We rmd all these cases cond.uon in its cert.ficate of public conve-dzstinguishable. In - (Jmted States v. Chesa- nience and necessity approving the merger. In peake & Oluo Radway Co. 426 U.S. 500, 36 Adnural. Merchants Motor Fresght. Inc v. Unst- !
, S Ct. 2318,49 led.2d 14 (1976). railroads justi- ed States. 321 F.Supp. 353 (D. col)(three judge I fled recuests for tartff increases on the ground panet), affd per cunam 404 U.S. S02. 92 S.Ct.
that certam capital and mamtenance expenses St. 30 led.2d 37 (1971). the ICC granted the - were needed. The Supreme Court held that the ' parties an extensson of time on a hearmg with Interstate Con rnerte Commission ("!CC'*). as respect to rates on condiuon that if the rates an adjunct to its power to suspend and investi* gate rate mcreases. could condition the imme- were found unjust and unreasonable. a refund diste imp;ementation of the rate mcrease with- would be made for the extended panod. The cut investigauon on the radroads devotmg the carners first objected to this condition but mcrease to the spectied capital and mamte. then acceded to it in order to obtain the exten-nance expenses. Whde the Court gave as one saon n time. In A.noskear Co. v. /CC 590 Fad . reason for its dec:sson the representation by the 338 (1st C r.1979). a company began acquiring radroads, the decision was grounded on the stock m a radroad. When objecuons were ICC's powers under its authority to suspend made concerning the acquastuon of the stock. and investigate increases. In the three other the company made an express oral and written
' c cases c:ted. the representauons were made as to W I G to r h h p spectic mducements to obtain agency relief. g, In FPC v. Colorado Interstate Gas Co. 348 U.S. g 492. ~5 S.Ct. 467. 99 led. 563 (1955), a compa-g i
I i Adm. Office. U.S. Court 3-West Publishing Company, Saint Paul, 51 inn. c i l
. i
Florida Cities: 11/10/81 BEFORE THE UNITED STATES I NUCLEAR REGULATORY COMMISSION [ BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In The Metter Of ) FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A
- )
(St. Lucie Plant, Unit No. 2) ) November 10, 1981
)
CERTIFICATE OF SERVICE I hereby certify that copies of.the foregoing were served upon the following persons by hand delivery (*) or by deposit in the U.S. Mail, first class, postage prepaid this 10th day of November, 1981.
- Peter B. Bloch, Esq. Steven F. Eilperin Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Michael A. Duggan, Esq. Donald A. Kaplan, Esq.
Administrative Judge Robert Fabrikant , Esq. College of Business Antitrust Division Administration Department of Justice University of Texas Washington, D.C. 20530 Austin, Texas 78712
*J.A. Bouknight, Jr., Esq.
- Robert M. Lazo, Es q. Steven P. Frantz Administrative Judge Lowenstein, Newman, Reis &
Atomic Safety and Licensing Board Axelrad Nuclear Regulatory Commission 1025 Connecticut Avenue N.W. Washington, D.C. 20555 Washington, D.C. 20036
. Alat S. Rosenthal, Chairman Mathews, Osborne, Ehrlich, Atomic Safety & Licensing McNatt, Gobelman & Cobb Appeal Board 1500 American Heritage Life Nuclear Regulatory Commission Building Washington, D.C. 20555 Jacksonville, Florida 32202
1 Christine N. Kohl Reubin O. D. Askew, Esq. Atomic Safety and Licensing Appeal Greenberg, Traurig, Askew, Board- Hoffman, Lipoff, Quentel Nuclear Regulatory Commission & Wolff, P.A. Washington, D.C. 20555' 1401 Brickell Avenue Miami, Florida 33131 William C. Wise, Esq.
-1200 18th Street, N.W., Suite 500 Robert R. Nordhaus, Esq.
Washington, D.C. 20036 Van Ness, Feldman, Sutcliffe, Curtis & Levenberg
, William H. Chandler, Esq. 1050 Thomas Jefferson St. N.W.
Chandler, O'Neal, Avera, Gray, 7th Floor Lang & Stripling Washington, D.C. 20007 P.O. Drawer 0 Gainesville, Florida 32602 Janet Urban, Esq. Department.of Justice
- Daniel H. Gribbons, Esq. P.O. Box 14141 Herbert Dym, Esq. Washington, D.C. 20044 Covington & Burling 1201 Pennsylvania Ave. N.W. -* Chase Stephens, Chief Washington, D.C. 20044 Docketing & Service Section Nuclear Regulatory Commission Florida Power & Light Company Washington, D.C. 20555 ATTN: Dr. Robert E. Uhrig Vice President George R. Kucik, Esq.
Advanced Systems & Technology Ellen E. Sward, Esq. P. O. Box 529100 Arent, Fox, Kintner, Miami, Florida 33152 Plotkin & Kahn Suite 900 Benjamin H. Vogler, Esq. 1815 H Street N'.W., Ann P. Hodgdon, Es q . Washington, D.C. 20006 Counsel for NRC Staff Nuclear Regulatory Commission j Washington, D.C. 20555 November 10, 1981 By _0 h ), ok Law offices of: o Spiegel & McDiarmid 2600 Virginia Avenue N.W.
, Washington, D.C. 20037 l
l [}}