548 F.2d 1056 (D.C. Cir. 1977), 74-1411, Cities of Batavia Ill. v. Federal Power Commission

Docket Nº:74-1411.
Citation:548 F.2d 1056
Party Name:The CITIES OF BATAVIA ET AL., ILLINOIS, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Commonwealth Edison Company, Intervenor.
Case Date:January 04, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1056

548 F.2d 1056 (D.C. Cir. 1977)




Commonwealth Edison Company, Intervenor.

No. 74-1411.

United States Court of Appeals, District of Columbia Circuit

January 4, 1977

Argued Nov. 2, 1976.

Page 1057

Charles F. Wheatley, Jr., Washington, D. C., with whom Grace Powers Monaco, Washington, D. C., was on the brief for petitioners.

James T. McManus, Atty. F. P. C., of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of court for respondent. Drexel D. Journey, Gen. Counsel, F. P. C., George W. McHenry, Jr., Sol., at the time the brief was filed, John H. Burnes, Jr., and A. Lee Wallace, Attys., F. P. C., Washington, D. C., also entered appearances for respondent.

Richard G. Ferguson, Paul T. Ruxin and William S. McKay, Jr., Chicago, Ill., were on the brief for intervenor.

Before LEVENTHAL, ROBINSON and WILKEY, [*] Circuit Judges.


This is a case where cities complained to the Federal Power Commission that the rate charged to them by Commonwealth Edison on interstate sales of electric power subject to the jurisdiction of the Commission were higher than the rates charged by the utility on direct sales to industry, and reflected an anticompetitive program by the utility, one that had the purpose and effect of ousting the cities from sales, on resale, to such industrial consumers. The Commission's order rejecting the complaint appears at 51 F.P.C. 86, rehearing denied 51 F.P.C. 978 (1974), and we see no need to spell out the details of the situation.

The Commission ruled that it had no jurisdiction to consider the level of rates charged by Commonwealth Edison to industrial consumers. All parties agree that this Commission ruling is erroneous under the Conway doctrine. 1

Commission counsel argues that the Commission's order should be affirmed on the basis of the Commission's alternative ground, namely, that there is cost justification for the differential between the rate on sales to the cities, which generally take their peak at the same time as the system peak load, and the rate charged on sales to industrials, which generally take their peak load at times different from the system peak.

Under the Conway doctrine the Commission function extends not only to consideration of the existence of a...

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