Papago Tribal Utility Authority v. Federal Energy Regulatory Commission
| Decision Date | 11 January 1980 |
| Docket Number | No. O,No. 76-1937,O,76-1937 |
| Citation | 610 F.2d 914 |
| Parties | PAPAGO TRIBAL UTILITY AUTHORITY and Arizona Electric Power Cooperative, Inc., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Electrical Districtne, Arizona Public Service Co., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Arnold D. Berkeley, Washington, D. C., with whom David R. Straus, Washington, D. C., was on the brief, for petitioners.
Joseph G. Stiles, Atty., Federal Power Commission, Washington, D. C., with whom Drexel D. Journey, Gen. Counsel, Robert W. Perdue, Deputy Gen. Counsel, and Allan Abbot Tuttle, Sol., Federal Power Commission, Washington, D. C., were on the brief, for respondent. Philip R. Telleen, Atty., Federal Power Commission, Washington, D. C., also entered an appearance for respondent.
James K. Mitchell, Washington, D. C., with whom Richard M. Merriman, Washington, D. C., was on the brief, for intervenor Arizona Public Service Co.
William D. Baker and Robert S. Lynch, Phoenix, Ariz., were on the brief, for intervenor Electrical District No. One.
Before McGOWAN, TAMM and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROBINSON.
Petitioners, Papago Tribal Utility Authority (PTUA) and Arizona Electric Power Cooperative, Inc. (AEPCO), and the intervenor, Electrical District No. One (ED-1), challenge the Federal Power Commission's 1 acceptance of a rate-increase filing by Arizona Public Service Company (APS) purportedly pursuant to Section 205(d) of the Federal Power Act. 2 Both petitioners contend that this endeavor to achieve higher rates suffered from a fatal lack of supporting data. Additionally, PTUA and ED-1 assert that under the familiar Mobile-Sierra doctrine 3 their preexisting service agreements with APS prohibit implementation of the new rates until the Commission affirmatively adjudges their validity. We find merit in the second claim, 4 though none in the first, 5 and order rectification accordingly.
In early 1976, APS, a public electric utility subject to the Federal Power Act, 6 tendered for filing increases in its rates to seventeen wholesale customers, including those who are litigants here. Early on, petitioners sought and were granted leave to intervene. Both opposed the filing for alleged failure to meet the Commission's requirements respecting accompanying documentary justification. 7 PTUA further insisted that its contract with APS 8 barred any rate elevation not properly resulting from a proceeding under Section 206(a) of the Act. 9
The Commission was unmoved by either argument. With respect to petitioners and ED-1 as well, the Commission in the first of the two orders under review, accepted APS's filing, suspended the new rates for one month with leave thereafter to go into effect subject to refund, and established hearing procedures. 10 The Commission read the APS-PTUA contract as reserving to APS the right to make unilateral rate-raising filings. 11 The Commission also deemed APS's filing to be in compliance with pertinent regulations and adequate for purposes of its suspension determination. 12
Subsequently, PTUA and AEPCO sought rehearing, again urging their previous positions. ED-1 applied for intervention and rehearing, maintaining that its rates could be altered only after a Section 206(a) investigation. The Commission permitted ED-1 to intervene but denied the requests of these three parties for rehearing. 13 A timely petition for review in this court followed. 14
The Commission's regulations establish fairly stringent informational requirements for electric utilities undertaking to amend their rate schedules. 15 On the ground that these demands went unmet, petitioners urged the Commission to reject APS's filing. That the Commission twice refused to do, 16 and petitioners reassert their position here. 17
With the rate-raising tariff in issue, APS transmitted four volumes of supporting materials to the Commission. Included were sales and revenue comparisons, historic and projected cost-of-service studies, workpapers related to the estimates of future costs and prepared direct testimony of APS witnesses. Despite the copiousness of the submission, petitioners sought considerably more. Petitioners say that the supplied information did not fully explain various individual statements deemed essential components of the filing utility's presentation by the regulations, 18 or the derivation or bases of the figures estimated for the future test year. The gravamen of petitioner's complaint is captured in their assertion that APS's workpapers 19 Assuming without deciding that petitioners might in some circumstances claim benefit from the Commission's informational regulations, 20 we think they misconceive the true function of those regulations and in consequence have built their argument on a foundation of sand.
Section 205(d) of the Federal Power Act requires a utility to give at least 30 days' notice prior to implementation of a rate alteration, unless otherwise ordered by the Commission. 21 Upon receipt of such notice, the Commission, by virtue of Section 205(e), may suspend the operation of the new rate for a maximum of five months and direct a hearing on its lawfulness. 22 So, responsively to the dictates of the Act, the Commission must be prepared to review each rate- -change filing within the 30-day period, for only then is it in position to "evaluate in each case the advisability of suspending the rate (of) filing pending full hearings on the reasonableness of the proposed rates." 23
It was to facilitate the Commission's task in this regard that the Commission promulgated in Section 35.13 of its regulations 24 a number of rules requiring utilities to augment their rate-change filings with a variety of information. 25 As the Commission then explained, the purpose was "to enable (it) to process rate schedule filings more expeditiously." 26 And this court has discerned a subsidiary function likewise served by these rules, deriving from the Commission's "authority to structure its filing requirements so as to afford as meaningful notice as possible to a utility's customers and to avoid the possibility of detrimental reliance upon inaccurate filing submissions." 27 We thus have recognized, as has the Commission, that the purposes of the informational regulations are
to assure that the rate filing will provide the (Commission) with the necessary information from which it can reach an informed and equitable decision as to the necessity for an investigation, hearing and suspension, and to permit the Commission and parties in interest with meaningful opportunity to prepare for any proceeding. 28
Against this functional backdrop, we cannot accept petitioners' premise that Section 35.13 summons the filing of supplemental information in the quantity and detail needed to establish the validity of the new rates on the merits. 29 "At the tariff filing stage, the Commission is authorized to make only a limited determination: whether the proposed tariff is 'sufficiently complete for it to be able to decide whether or not to investigate and suspend the increased rate' "; 30 "it is only at the hearing stage that the Commission may inquire into the merits of the rate increase." 31 Consequently, at the point of filing, the Commission has need only for only enough data to make the "first cut" 32 and take the "first look." 33 And while a byproduct of the information regulations is a better opportunity for preparation by protestants and the Commission alike, it is with respect to the proceeding on the merits that this assistance is contemplated. The regulations obviously are not intended to supplant the discovery, presentation of evidence and briefing attendant upon the hearing process, 34 or to displace that plenary and deliberate process by a summary merits determination.
Nor are we impressed by petitioners' insistence that the Commission was duty bound to pass on their motion to reject APS's rate filing as unlawful, and was not free to postpone a ruling thereon until the hearing on the merits. With this, as an academic proposition, we thoroughly agree, 35 but it has no application here. In its original order, the Commission stated that "(w)ith respect to the sufficiency of the filing, the Commission's filing regulations are intended to allow a first look at the rate increase," and that "(w)hether APS has justified its rate increase is properly a matter for the hearing the Commission herein orders." 36 We read this to mean that the challenged filing sufficed for purposes of the "first look," whether or not it would carry the day when the merits were reached. Any doubt as to the Commission's view on the adequacy of the filing was dispelled on rehearing when the Commission declared "that the material filed in support of the proposed rate increase complies with Section 35.13 of the Regulations," and "that the questions raised as to the merits of the rate increase are not proper for summary disposal but should properly be asserted at the hearing ordered to determine the lawfulness of the proposed rates." 37 Accordingly, we cannot accept petitioners' argument that the Commission deferred a decision on a deficient filing on the theory that it could be remedied during the hearing process. 38 Rather, the Commission ruled positively on petitioners' motion to reject and denied it because, in its view, APS's filing satisfied the pertinent regulations. The...
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