Alabama Power Co. v. Federal Power Com'n
| Decision Date | 11 November 1974 |
| Docket Number | Nos. 73--1436,73--2016,s. 73--1436 |
| Citation | 167 U.S.App.D.C. 145,511 F.2d 383 |
| Parties | , 1974-2 Trade Cases 75,345 ALABAMA POWER COMPANY et al., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Jerome C. Muys, Washington, D.C., with whom Thomas M. Debevoise and Paul T. Nowak, Jr., Washington, D.C., were on the brief, for petitioner in No. 73--1436. William J. Madden, Jr., Harrisburg, Pa., also entered an appearance for petitioner in No. 73--1436.
By direction of the Court, the amicus curiae brief filed in No. 73--1436 by Consolidated Edison Co. of New York was treated as petitioners brief in No. 73--2016. Donal F. McCarthy, New York City, for petitioner in No. 73--2016 and for amicus curiae in No. 73--1436.
William M. Sawyer, Atty., F.P.C., with whom Leo E. Forquer, Gen. Counsel, and George W. McHenry, Jr., Sol., F.P.C., were on the brief, for respondent.
Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges
The petitioners are electric utilities regulated by the Federal Power Commission. They challenge the Commission's refusal to reconsider its practice of collecting and disseminating certain information about their fuel purchase transactions, asserting that the disclosure of information facilitates anticompetitive behavior by fuel suppliers. We affirm the Commission's dismissal of their petition.
On November 26, 1971, the Commission proposed, in a notice of proposed rulemaking, to augment its collection of data on the operations of electric utilities by requiring each utility to submit a monthly report on fuel purchases. The report was to specify certain details about every delivery of fuel at a steam generating plant during the reporting month, including the quantity and quality of fuel received, the name of the supplier, the price per unit and the expiration date of the contract under which fuel was purchased. By the terms of the regulation initially proposed, the information reported to the Commission was to remain 'confidential information not available to the public or any other agency of government except insofar as may be directed by the Commission or by a court.'
Various parties submitted comments in response to the Commission's initial proposal. Some utilities objected that the reporting requirements were unduly burdensome, and some indicated that, notwithstanding the Commission's announced intention to limit disclosure, the reporting of this information might eventually prove harmful to a company's proprietary interest. Other parties, however, supported the data collection effort and sought to expand disclosure of the data reported. Three federal agencies--the Federal Trade Commission the Environmental Protection Agency, and the Office of Emergency Preparedness--indicated that the data would be useful for intra-agency studies and sought access to the data by their respective staffs. The Environmental Protection Agency and the Office of Emergency Preparedness recommended that, except for certain items, such as name of supplier (OEP) and contract expiration date (EPA), there was no reason why the data should remain confidential. 1 Still other parties--e.g., the Sierra Club, Friends of the Earth, and the Public Interest Research Group--argued for public disclosure of all the data.
After receiving written submissions, the Commission, on January 17, 1972, held a hearing at which interested parties were allowed to comment on the proposed regulation. At the hearing, at which a representative of the General Counsel of the Commission presided, the parties made oral presentations and cross-examined other participants; written statements were also accepted for inclusion in the record.
The Commission responded to the views expressed at the January hearing by focusing on the kind of information to be reported and disclosed. In a Notice of Proposed Alternatives in Rulemaking, promulgated March 9, 1972, the Commission offered two alternative forms for reporting data. The first alternative was substantially similar to the form initially proposed, requiring the utility to report details of the transaction at each plant delivery of fuel. The second form permitted utilities to report only the average unit cost, during the reporting month, of fuel delivered at plants located in a single Standard Metropolitan Statistical Area (SMSA), rather than the price paid at each plant delivery. The second form also omitted all references to the names of suppliers and contract expiration dates. The Commission proposed prompt disclosure of information reported by either form, but the averaging of cost information on the second form necessarily concealed some transaction details reportable on the first.
Following the March 9 notice, interested parties again submitted written comments to the Commission. While some utilities maintained their objections to any reporting requirement, controversy centered largely on which of the two reporting forms the Commission should adopt. Many utilities expressing a preference favored adoption of the form that allowed them to report only the average cost of fuels delivered at plants within a single SMSA. On the other hand, submissions of other parties, including those of the Subcommittee on Special Small Business Problems of the House Select Committee on Small Business, the Office of Emergency Preparedness, the Sierra Club, Friends of the Earth, and the Public Interest Research Group, expressed a preference for the form that called for information on each plant delivery, and this was the alternative the Commission adopted by promulgating Regulation 141.61 2 on June 7, 1972.
In January, 1973, seven months after the Commission promulgated the regulation the electric utilities petitioned for its amendment, asserting that disclosure of information about specific transactions--especially the seller's name, the contract expiration date, and the price--had furnished fuel suppliers with new information about the utilities' willingness to pay for fuel, thereby 'plac(ing) the reporting utilities at a decided disadvantage in negotiations for available fuel supplies.' As the utilities put it in their petition:
(A)n extremely valuable piece of bargaining information is now in the hands of the seller, viz, evidence of the price which the buyer has recently been willing or required to pay. This information is especially advantageous to the supplier, who as a member of the industry, has a good idea of the supply position of his competitors. The purchasing utility is doubly disadvantaged because it not only does not know what costs are incurred by its suppliers, but it also does not know what prices are being offered by non-utility fuel purchasers. (JA 73)
The utilities argued that availability of the information to fuel sellers could facilitate anticompetitive pricing practices by them, citing in support the cases which have held exchanges of price information to violate § 1 of the Sherman Act, e.g., United States v. Container Corp. of America, 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969). The utilities asked the Commission to modify Regulation 141.61 either (1) to permit the utilities to report the average unit price of fuels delivered at each plant, rather than the price at each delivery, and to cease reporting the supplier's name and contract expiration date; or (2) to continue existing reporting requirements but disclose the data only to other government agencies.
In an opinion dated March 2, 1973 (hereinafter 'initial opinion'), the Commission denied the requested relief on two grounds. First, the Commission asserted that it lacked jurisdiction to amend the regulation because the order promulgating it was then before this court for review on petition of the National Coal Association. 3
As an alternative ground of decision, the Commission addressed the merits of the petition and observed that since it contained no allegation of an agreement among the suppliers to exchange information, no violation of Sherman Act § 1 had been stated. The Commission noted that the antitrust laws did not prohibit collection of information and disclosure by the Commission itself. The Commission provided, however, that
Petitioners may file an Offer of Proof, . . . setting forth facts and other circumstances to support its allegation that disclosure of data . . . has resulted in injury to electric utilities and that such injury outweighs the public benefit from full disclosure and the relief which the Commission can grant, if any. (J.A. 85)
In an application for rehearing filed April 2, 1973, the utilities contested the Commission's disclaimer of jurisdiction to give relief, and on the merits elaborated on the arguments presented in the first petition. 4 The Commission dismissed the application on April 16, 1973, stating that it failed to 'identify with any degree of specificity, the evidence to be presented' in support of the utilities' claim of injury. The utilities took this appeal. 5
In offering a disclaimer of jurisdiction to amend Regulation 141.61 as an independent ground for dismissal of the utilities' petition, the Commission apparently took the position that inability to grant relief during the pendency of appeal alone justified refusal to reconsider the policy embodied in the regulation. With this position we disagree.
Limitations on the Commission's power to modify an order during the pendency of an appeal may be inferred from Section 313 of the Federal Power Act, 16 U.S.C. § 825l, providing that the...
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