ML20031B359

Complaint for Recovery of Damages Against Fl Power Corp & Fl Power & Light Co,Resulting from Violations of Antitrust Laws.Certificate of Svc Encl

ML20031B359
Person / Time
Site:	Saint Lucie
Issue date:	08/13/1968
From:	Fagan O, Frazier W, Rowley W, Jeffrey Scott, Spiegel G GAINESVILLE, FL
To:	U.S. DISTRICT COURT, MIDDLE DISTRICT OF FLORIDA
Shared Package
ML20031B356	List: ML20031B355 ML20031B359
References
68-305-CIV-5, NUDOCS 8110010273
Download: ML20031B359 (13)

Text

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IN THE UNITED STATES DISTRICT COURT f

FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION GAINESVILLE UTILITIES DEPARTMENT and CITY OF GAINEEVILLE, FLORIDA Plaintiffs

(,T..los". CtM v.

CIVIL ACTION NO.

FLORIDA POWER CORPORATION and FLORID ^ POWER AND LIGHT COMPANY Defendants COMPLAINT Plaintiffs, by their attorneys, bring this civil action c4ainst the above-named defendants for the recovery of damages suffered by them in their business and property as a.esult of defendants' violations of the antitrust laws of the United States and, demanding a trial by !ury, complain and allege as follows:

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y JURISDICTION AND VENUE

1. This complaint is filed and the jurisdiction of this Court is in-voked under the provisions of Section 4 of the Clayton Acc (lS U.S. C. I 15) to recover damages from the defendants based upon violations by the

' defendants, as hereinafter alleg-d. of Sections 1 and 2 of the Sherman Act (15 U. S. C. 15 1, 2).

2. Each of 0.e defendants maint2 ins an office, transacts business, and is found within the Middle District of Florida and is within the jurlsilc-

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tion of this Court for the purpose of cervice of process. Ma..y of the un-lawful acts done in violation ci the antitrust laws as hereinafter alleged have been performed within the Middle District of Florida.

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3. The defendants' acts alleged in this complaint were authorized,

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ordered or dono by the officers, directors, agents, employees or represe t-tatives of each defendant while they were actively engaged in the management, direction or control of its affairs.

II THE PARTIES

4. Plaintiff City of Cainesville is a municipal corporation of the State of Florida with its main business offices in Gainesville, Florida.

Tnrough plaintiff Calnesville Utilities Department, which also has its.

main business offices in Cainesville, Florida, the city has since 1912, and is now, engaged in the generation, transmission, distribution and sale of electric power at retail in Alachua County, Florida, both within and without its city limits.

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5. Florida Power Corpo: ation, a Florida Corporation with its prin-ctpal offices in St. Petersburg, Florida, is named a defendant herein.

Florida Power is an electric company engaged in the generation, trans-mission, distribution and sale of electric power at wholesale apd retail in a territory comprising some 20,600 square miles in 32 counties from the Florida Panhandle through the west and central sections of Florida, through the suburbs of Orlareio and south into Highlands County. Florida Power is the second largest electric-rtility system in Florfda.

6. Florida Power and Light Company, a Florida corporation with

.ts principal offices in Mian 1, Florida, is named a defendant herein.

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,. FP&L is an electric company engaged in the generation, purchase, trans-s j, mission, distribution, and sale of electric power in the Miami metropolitan o

il ares.tnd the eastern and southern counties of Florida. It is the largest electric-utility system in Florida.

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NATURE OF TRADE AND COMMERCE

7. Defendants Florida Power Corporation and Florida Power and 1.ight Company are interconnected with each other and with Tampa Electric Company,

Orlando Utilities Commission, and the City of Jacksonville. These five elec-trical systems comprise the Florkia Pool. Defendants and the other members of the Florida Pool are interconnected with Gulf Power Company in Florida and are interconnected with and are members of, the Interconnected Systems Group, cousisting of electric utilities operating in the general area of central United States, from Canada to the Gulf of Mexico, and southeastern United States.

8. All members of the Interconnected Systems Group operate three-phase systems, continuously in parallel at a frequency of 60 cycles per second, and most of them utilize Tie-Line Blas, an automatic control that

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enables each system to assist all other systems in supplying electric loads 4

at times of shortages of generation and in maintaining;he 60-cycle frequency.

Defendr.rds syvems and all the systems with which they are directly and in-directly interconnected operate synchronously and respond together to changes in load and frequency, each making a contribution to meeting addi-tional loads anywhere in the interconnected network. Electric energy flows

'I freely into, out of, and throughout each of the interconnected syste'ms, and this flow is not controlled save to maintain the ret inflow or net outflow of

. ach system in accordance with its agreed -chedule. Consegaently, there re tim-when energy from Georgia and other southeastern states flows into bodt defendants' systems through the facilities of Alabama Power Company in Alabama, of Georgia Power Company in Georgia, of Gulf Power Company in Florida, and of deft:ufant Florida Power Corpo a:fon, and there are times g

when energy follows a reverse pattern and flows to Alabama and Georgia from r

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9. Plaintiff City of Gainesville owns and operates, through plaintiff 7

,t Gainesville Utilities Department, one of several isolated municipal electric' utilities located in the State of Florida. Although some of the municipal utilities in Florida buy their supplies of electric energy from the electric companies at wholesale, the Gainesville' system remains an ieolated one, generating all ite own electricity. Because of its isolation from other electric-utility syritems, the Gainesville utility is compelled to assuma the expense of maintaining not only enough generation capacity to meet its peak-load requirements but also substantial additional generation for back-up or reserve purposes.

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10. Interconnection by a single electric-utility system witl another major system or with an electric-power pool effers at least six importanc advantages (a) It greatly reduces We amount of back-up or reserve generation that must be maintained as a safes. nard against breakdown or failure of equipment. As an isolated system, the Gainesville tnunicipal utility must constantly strive to keep its reserve generation at a capacity nearly equal to the system's largest generating unit. On the other hand, a utility with ample interconnection and exchange arrangements with other utilities is frequently able to get along safely with reserve generation that amounts to less than 10% of its normal power requirements.

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(b) By eliminating isolated system's need of keeping in reserve generating capacity equal to the largest genera:ing unit, interconnection

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enables the system to install larger and more economical generators than it would be able to build on an isolated basis.

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(c) Interconnection enables the interconnected utilities to save money by the economy exchange of energy. At any given time the combination 1

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, of generators which will be operated on tha two systems will be the moat economical from the point of view of fuel and other operating costs.

Generally the two utilities will share the savings equally.

(4 It enables the companics to coortlinate the construction and placing into operation of big new generators so that the various parties can utilize cl.e excess of another party's new generation and postpone the construction of its own generation.

(e) It makes available to a connected company transmission

.ersicas that enable it to purchase low-cost bulk power from other systems connected elsewhere on the lines of the interconnecting utility.

(f) It increases the possibility of joint construction and operadon of massive generating projects, including nuclear pro [ects, that would be -

beyond the. capabilities of each interconnected system acting alonc and yet f -

offer substantial substantial economies and other public benefi:s such as

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reduced air pollution.

11. In Florida, state and federal administrative regulation touches fewer of the operations of electric power companies than such regulation does in the rest of the United States. As in most states, electric power systems in Florida remain free to negotiate their own arrangements for, 1

and therefore compete in, (1) the construction of generating facilities, (2) the purchase and sale of bulk power, (3) the procurement and sale of

. long-range transmission services, ac.d (4) the purchase and sale of whole'-

sale power. As is also true in most of the states, Florida electric utility

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systems can compete in attracting new industrial or commercial enter-v prises to their areas of service. In addition, however, the Public Utility 4,; Law of Florida 'Ch. 366 F.S. A.) givea the Florida Public Utility Commission l

i, no authority to assign electric utilities exclusive service areas, so that

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t 6-they remain free to compete at retail in the emension of their service at 'as.

• R.e Commission does accept, for filing ar4 approval, territorial agreements between and among electric companies, but the only effect of approval is to relieve each contracting utility of its responsibility, as a public-service ' I corporation, to render service at the demand of consumers outside its agreed territory.

IV OFFENSES CHARGED

12. Beginning in or before 1964 and continuing up to and including the date of the filing of the complaint, defendants ' ave engaged in continuing un-n i

lawful combinations and conspiracies unreasonably to restrain and to mono-L polize interstate ersde and commerce in electric power in violation of Section

,i 1 and 2 of the Sherman Act.

13. The combinations and conspiracies consisted of a continuing agreement, understanding, and concert between the defendants, the sub-t stantial terms of which are:

(a) To establish exclusive service territories for each of the defendants within which it would be free from competition for wholesale i

customers; (b) To compel the estahltahment of exclusive urvice territories, for the aalc cf electric energy at wholesale to distributing utilities, with S

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l like freedom from competition, for all electric companies in

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the State of Florida; and i

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(c) To boycott and refuse to deal with the plaintiffs through an

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.nterconnection and to deny backup service, except on the basis of terms t

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14. Beginning at least as early as 1964, and continuing up to and in-O L

cluding the date of the filing of this complaint, defendant Florida Power Corporation edgaged in a continuing attempt to monopolize interstate trade and commerce in electric power in violation of Section 2 of the Sherman Act by refusing to deal with plaintiffs through an interconnecton except on the basis of terms that would assign exclusive service territories to plaintiffs and Florida Power.

IS. Beginning at least as early as 1964, and continuing up to and in-cluding the date of the filing of this complaint, defendant Florida Power and Light Company engaged in a continuing attempt to monopolize interstate trade and commerce in electric powet in violation of Section 2 of the Sherman Act by refusing to deal with p4..atiffs through an interconrection except on the basis of terms that would assign exclusive service territories to plain-tiffs and FP&L.

V INIURY TO PLAINI'IFFS

16. The unlawful conduct above described has impaired the ability of plaintiff, to compete effectively for business within, and in the area surround-ing, the City of Gainesville and has frustrated the development of a truly integrated and coordinated electric power system for Florida, as is called for by the Federal Power Act (16 U.S.C. II 791 et seq.) and the Public Utility Holding Company Act (15 U.S.C. II 79 et seq.), by excluding Cainesville and other municipal electric utilities from interconnections with the Florida power grid.

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17. As a direct and pror.imate result of the unlawful conduct herein-tefore alleged, plaintiffs have incurred and continue to incur excessive costs and expenses they otherwies would net have had, have lost sales they otherwise would have made, and ham sustained and continue to sustain loss in the valub of their busfress. Plaintiffs have not fully ascertained the dollar e

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. 'h c=sunt of said damages but believe them to total in excess of $4 c:1111on. When the amount of damsges has been more fully ascer-esined, after completion of discovery in this action, plaintiffs will ask leave to amend this complaint by inserting said amount herein.

WHERZTORE, plaintiffs pray:

(1) That plaintiffs recover from the defendants their damages, pursuant to and on the basis provided by Section 4 of the Clayton Act.

(2) That plaintiffs be awarded their reasonable accorneys' fees and costs as provided by Section 4 of the Clayton Act.

Plaintiffs demand trial by jury.

CAINESVILLE TJIILITIES DEPARTMENT and CITY OF GAINESVILLE, FLORIDA By 4 William R. Frazier -

816 Atlantic National Bank Bldg.

Jacksonville, Florida 32202 Y

A A n~ w R By 4 ca.

Osee R. Fagan City Attorney 212 S. E. lat Street Cainesville, Florida 32601

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Ida 0. lc By_

Worth Rowley/- John C. Scott 1730 Rhode Island Avenue, N. W.

Washington, D. C. 20036 cl henle

! L By J George' Spiegel l

Suite 312 2600 Virginia Avenue, N. W.

Washington, D. C. 20037 DATED: August 13, 1968.

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1 APPENDIX D 2

- Letter from Alan J.

Roth to J.A.

Bouknight, requesting workpapers, September 22, 1981.

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Letter from J. A. Bouknight to Alan J.

Roth, refusing workpapers, i

September 25, 1981.

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' law CFFiCES I

-L &.McDIa.stID men = LA~oSuaN GECmGE SmEGEL. Pc SONmit S.s w a mCetet C. wcciAnwiO 2600 V14G4NIA AVENUE, N.W.

S ANC A A J. stateEL mosEnt MAmLEY SEAM 4CSEnt A..AubCN WAS>hNGTON. O.C. 20037 7"OMAN

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JOHN MICHAEL AOmAGNA

.AMES N MCmWCQQ ALAN J ROTM TELEl.MONE (202) 333 AS00 cvNtMeA S. ecconAo FRANCES E. FRANCIS TEMICPIEm 1202) 333 2974

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• ETER M. M ATT STEPMEN C. NICHOLS eAVion.$rmAUS September 22, 1981

• • = cia E st^cm Op coumath SUSAN?.SMEPMEm0 J.A. Bouknight, Jr., Esq.

Lowenstein, Newman, Reis

& Axelrad HAND DELIVERY 1025 Connecticut Avenue N.W.

Washington, D.C.

20036 Re:

Florida Power & Light Company (S t. Lucie Plant, Unit No. 2),

NRC Docket No. 50-389A

Dear Lon:

This will confirm our request of September 17 to Peter Flynn and September 18 to Doug Green for the workpapers for Attachment C to the September 14, 1981 " Memorandum of Flcrida Power & Light Company on Matters Relating To August 17 and 18, 1981, conference of Counsel."

Sincerely, t

Alan J. Roth Attorney for Florida Cities cc:

Herb Dym, Esq.

O Doug Green, Esq.

Peter Flynn, Esq.

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? 28 1981

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";"l<;*7l*a September 25, 1981 DaviO 4. N CLL C, engoon, gameegg aasms w. COT?stessaas moetetw. Cuba pttte 4. PLysees STtvCm a reants PetermeC 3. Gaaf a4V988 84. GWTTEResaN OaweO s. masa,es DessaLO d. Sik'vsnessas Ala.n J. Roth, Esquire Spiegel & McDiarmid i

2600 Virginia Avenue, N.W.

Washington, D.C.

20037

Dear Alan:

This responds to your letter of September 22, 1981.

As Doug Green advised you last week, we believe that FPL is not required to produce the materials requested.in your letter.

The materials were prepared in anticipation of litigation, and, moreover, it is our position that your discovery which you seek is not reasonably calculated to lead to the discovery of admissible evidence.

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J. A. Bouknight, Jr.

JAB:lkf cc:

Herbert Dym, Esquire

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i Florida Cities: 9/28/81 i

BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION 1

ATOMIC SAFETY AND LICENSING BOARD Bofore.Niministrative Judges:

Peter B.

Bolch, Chairman Michael A.

Duggan Robert M. Lazo Ivan W.

Smith, Alternate

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FLORIDA POWER & LIGHT COMPANY

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Docket No. 50-389A

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(St. Lucie Plant, Unit No. 2)

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September 28, 1981 E

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 28th day of September, 1981.

• Peter B.

Bloch, Esq.

Thomas S. Moore Administrative Judge Atomic Safety and Licensing i

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, Esq.

Lowenstein, Newman, Reis &

T Administrative Judge Axelrad

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Atomic Safety and Licensing Board 1025 Connecticut Avenue N W.

2 Nuclear Regulatory Commission Washington, D.C.

20036 Washington, D.C.

20555; John E. Mathews, Jr.,

Esq.

Alan 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

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Christine N. Kohl Reubin O.

D.

Askew, Esq.

Atomic Safety and Licensing Appeal Greenberg, Traurig, Askew, Board Hoffman, Lipoff, Quentel Nuclear Regulatory Commission

& Wolff,

.t.A.

Washington, D.C.

20555 1401 Brickell Avenue

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Miami, Florida 33131

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William C. Wise, Esq.

1200 18th Street, N.W.

Robert R.

Nordhaus, Esq.

Suite 500 Van Ness, Feldman, Sutcliffe, Washington, D.C.

20036 Curtis & Levenberg 1050 Thomas Jefferson St.

N.W.

William H. Chandler, Esq.

7th Floor Chandler, O'Neal, Avera, Gray, Washington, D.C.

20007 Lang & Stripling P.O.

Drawer 0 Janet Urban, Esq.

Gainesville, Florida 32602 Department of Justice P.O.

Box 14141

• Daniel H. Gribbons, Esq.

Washington, D.C.

20044 Herbert Dym, Esq.

Covington & Burling

• Chase Stephens, Chief 1201 Pennsylvania Ave. N.W.

Docketing & Service Section Washingtot.,

D.C.

20044 Nuclear Regulatory Commission Washington, D.C.

20555 Florida Power & Light Company ATTN: Dr. Robert E. Uhrig George R.

Kucik, Esq.

Vice President Ellen E.

Sward, Esq.

Advanced Systems & Technology Arent, Fox, Kintner, P.

O. Box 529100 Plotkin & Kahn Miami, Florida 33152 Suite 900 1815 H Street N.W.

Benjamin H. Vogler, Esq.

Washington, D.C.

20006 Ann P.

Hodgdon, Esq.

i Counsel for NRC Staff Nuclear Regulatory Commission Washington, D.C.

20555 By v

September 28, 1981 Law offices of:

T Sp egel & McDiarmid a

2600 Virginia Avenue N.W.

Washington, D.C.

20037 j

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