Alabama Power Co. v. F.E.R.C.

Decision Date03 June 1994
Docket NumberNo. 92-7027,92-7027
Citation22 F.3d 270
PartiesALABAMA POWER COMPANY, Georgia Power Company, Gulf Power Company, Mississippi Power Company, Savannah Electric and Power Company, and Southern Company Services, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

Mark A. Crosswhite, Rodney O. Mundy, Dan H. McCrary, Balch & Bingham, Birmingham, AL, for AL Power Co.

Robert H. Forry, Troutman Sanders, Atlanta, GA, for GA Power.

Samuel Soopper, F.E.R.C., Washington, DC, for F.E.R.C.

Edison Holland, Jr., Beggs & Lane, Pensacola, FL, for Gulf Power.

Ben H. Stone, Eaton & Cottrell, Gulfport, MS, for MS Power.

Leamon R. Holliday, III, Bouhan, Williams & Levy, Savannah, GA, for Savannah Elec.

Petition for Review of an Order of the Federal Energy Regulatory Commission.

Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

This case involves the timeliness of a Federal Energy Regulatory Commission (FERC) order requiring five electric power companies to revise one of their rate filings. The petitioners, the affected power companies and their agent, contend the order was entered after the expiration of the statutory 60-day period within which the FERC is permitted to review rate filings. Holding that the agency's order was timely, we affirm.

Section 205 of the Federal Power Act, 16 U.S.C. Sec. 824d, requires public utilities engaged in the interstate sale and transmission of electric power to file their rates and charges with the FERC for review. When a public utility seeks to change its previously filed rates, the FERC has 60 days from the date of filing to review the new rates and suspend them if they do not appear just and reasonable. See 16 U.S.C. Sec. 824d(d). If the FERC does not exercise its suspension power within the 60-day period, the new rates take effect automatically. Indiana & Michigan Electric Co. v. Federal Power Comm'n, 502 F.2d 336, 341 (D.C.Cir.1974), cert. denied, 420 U.S. 946, 95 S.Ct. 1326, 43 L.Ed.2d 424 (1975).

The issue here is whether the 60-day review period begins only when the filing is complete for every utility when several utilities jointly file their respective rates, or whether it runs as to any utility in the group that is not affected by a timely amendment by another member of the group. We hold that the Commission could appropriately decide that the review period begins only after every utility's filing has been completed.

In December 1991, Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company, and Savannah Electric and Power Company (the Southern Companies) entered into a contract with Duke Power Company (Duke), setting forth the terms and conditions under which they would provide each other with electric power services. The contract, which superseded a prior agreement and established new rates for each party, is composed of several parts. The main document, entitled "Interchange Contract," contains the general terms and conditions of power supply as well as various administrative provisions. Attached to that document are a number of service schedules that set forth, among other things, various formulas used to calculate the rates charged for the specific services that either party may periodically request. Finally, the contract includes two additional appendices--the Southern Companies' Manual and the Duke Appendix--which set forth the seller-specific cost inputs to the formulas contained in the service schedules. These documents comprise a single, integrated agreement, referred to herein as the "Interchange Contract."

Under the statute, the Southern Companies and Duke were required to file these new rates with the FERC. On February 6, 1992, Southern Company Services, Inc., acting as an agent for the Southern Companies, submitted the Interchange Contract to the FERC. Duke, rather than submitting duplicative materials, satisfied its filing obligation by providing the agent with its own filing fee and a certificate of its concurrence in the Interchange Contract. The agent delivered Duke's fee and certificate of concurrence to the FERC, along with the Interchange Contract.

Less than 60 days after the filing, the FERC contacted Duke and expressed doubt regarding the reasonableness of its proposed rates. On April 1, 1992, in accordance with the FERC's instructions, Duke amended its Appendix to the Interchange Contract by lowering the return on common equity incorporated in its rates. The amendment affected the rates charged by Duke, but not those charged by the Southern Companies.

On May 29, 1992, the FERC issued an order approving Duke's rates as amended. The order, however, required the Southern Companies to file revisions of certain aspects of their rates. The petitioners requested a rehearing, arguing that the FERC had improperly ordered modification of the Southern Companies' rates more than 60 days after they were filed. The FERC denied rehearing on the ground that the 60-day period for reviewing all the rates in the Interchange Contract started over when Duke revised its rates on April 1, and that the May 29 order was therefore timely.

The petitioners now petition for review of the FERC's decision. Although they do not dispute that the period for reviewing Duke's rates began again on April 1, they argue that because Duke's amendment did not affect the Southern Companies' rates, which had been on file since February 6, those rates became effective by operation of law in early April. The sole issue on appeal therefore is whether the FERC may properly decide that when several utilities jointly file their respective rates in a single contract, the 60-day review period begins only when the filing is complete for every utility.

This case requires us to review the FERC's construction of the Federal Power Act, a statute it administers. The standard of review is determined by whether Congress has spoken to the precise issue presented. If it has, the agency's interpretation is accorded no deference, and the court simply gives effect to Congress's unambiguously expressed intent. Chevron U.S.A., Inc. v. Natural...

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