Atlantic Seaboard Corp. v. Federal Power Commission, 6532.
| Decision Date | 31 January 1953 |
| Docket Number | No. 6532.,6532. |
| Citation | 201 F.2d 568 |
| Parties | ATLANTIC SEABOARD CORP. et al. v. FEDERAL POWER COMMISSION. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Edward S. Pinney, New York City , for petitioners.
W. Russell Gorman, Attorney, Federal Power Commission, Washington, D. C. (Bradford Ross, General Counsel, Bernard A. Foster, Jr., Assistant General Counsel, Reuben Goldberg and Sherman S. Poland, Attorneys, Federal Power Commission, Washington, D. C., on brief), for respondent.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
The Atlantic Seaboard Corporation and the Virginia Gas Transmission Corporation, hereafter referred to as petitioners, have filed a petition with this court to review an order of the Federal Power Commission suspending certain increased rate schedules to March 9, 1953. They contend that the schedules were filed as a matter of law on August 15, 1952 and that the commission was without power to suspend them beyond February 15, 1953, and that, if it had such power, its action was unreasonable and arbitrary under the facts of the case and constituted an abuse of discretion. Pending the hearing of their petition they filed a motion asking that action on the commission's order be stayed after February 15, 1953 and that they be permitted after that date to put the increased rates into effect upon petition and the giving of bond as provided by statute. The commission has moved that the petition be dismissed on the ground that the court has no jurisdiction to entertain it and objects to the stay on this ground and also on the ground that the order was a lawful and proper exercise of the commission's power in the premises.
The facts are that petitioners on August 15, 1952 filed new gas tariffs with the commission containing rates higher than those then in effect. Petitioners stated in the papers accompanying the new tariffs that the higher rates were made necessary by the fact that on the same date its supplier, United Fuel Gas Company, filed with the commission increased rates which would increase petitioners' gas purchase costs by $2,000,000 per year. United Fuel Gas Company filed its higher rates on the same date claiming that they in turn were made necessary by the filing of increased rates on the same date by its supplier, Tennessee Gas Transmission Company, which would increase the gas purchase costs of United by $6,532,000 per year. The tariffs of all three companies increasing their rates were in fact filed with and received by the commission on August 15, 1952 and all of the tariffs were accompanied by supporting data. Staff members of the commission notified petitioners that the data furnished by petitioners failed to comply in certain particulars with the regulations of the commission; and petitioners, while contending that the data furnished was in compliance with the regulations and decisions of the commission, nevertheless supplied additional data on September 8 to meet these criticisms. Four days later, on September 12, 1952, the commission entered orders as to the filings of all three companies, finding it necessary and proper to enter upon hearings as to all of them and suspending the rates of United and Tennessee until February 15, 1953, but suspending the rates of petitioners until March 9, 1953, thus giving United and Tennessee the benefit of the filing date of August 15, 1952, when the increased rate schedules were filed by all companies, but denying it to petitioners and treating as their filing date, September 8, 1952, the date on which they filed the additional supporting data. Petitioners applied to the commission for a rehearing as to this and showed in their petition that their increased rates were based upon the increased rates of United and that, if the latter were put into effect on February 15 and the increased rates of petitioners were suspended until March 9, petitioners would suffer a loss of $17,500 per day for 22 days or a total of $385,000, which they would be unable to recoup. The petition for rehearing was denied.
The principal matter relied upon by the commission as failure on the part of the petitioners to comply with the filing regulations was the fact that the cost of service as shown in the supporting data was for the calendar year 1952 (five months actual and seven months estimated) instead of for "the most recent 12 months period or calendar year" as required by the regulations. It appears, however, that in its opinion No. 225 rendered in April 1952 involving rates of these same petitioners, the commission found that the proper test year was 1952, not 1951. The filing here was the third recently made by petitioners in which costs and other matters affecting its rates were set forth, and the commission received without protest on September 7, 1951, in connection with the second filing, data based on the test year 1952 (estimated). In its opinion No. 225 the commission said with respect to the use of 1952 as a test year:
Other matters relied on by the commission related to matters involved in the prior rate litigation, and as to these matters, petitioners were attempting to maintain in this proceeding the position formerly taken. It is a reasonable assumption that the commission had before it the facts as to all of these matters as a result of the filings theretofore made and the hearing had with respect to the first filing; but nevertheless petitioners supplied the data relating thereto as well as the cost of service for the year 1951 upon being advised by members of the commission's staff that this should be done. At all events, the commission admittedly had all required data before it in time to pass upon the schedules filed August 15 within the thirty days allowed by statute before they could be made effective and took action upon them within the thirty day period.
We agree with the commission that it is authorized by statute to prescribe rules and regulations under which increased rate schedules are to be filed. While the authority to prescribe rules and regulations is contained in section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c (c); which relates to the initial filing of rates and schedules, and not in section 4(d), which relates to changes in rates, the provisions of the statute must be construed together and it is not reasonable to give it an interpretation which would preclude the prescribing of rules and regulations with respect to the filing of rate increases where there is manifestly as much need for them as in the case of initial filings. We agree also that in the exercise of a sound discretion the commission might...
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