Federal Power Commission v. Florida Power Light Company 8212 38

CourtUnited States Supreme Court
Citation404 U.S. 453,92 S.Ct. 637,30 L.Ed.2d 600
Docket NumberNo. 70,70
Decision Date12 January 1972

See 405 U.S. 948, 92 S.Ct. 929.


The Federal Power Commission (FPC) properly determined that the transfer of power from Florida Power & Light Co. (FP & L) to another Florida utility's 'bus' (a transmission line into which subsidiary lines connect) and the simultaneous transfer of power from that utility's 'bus' to a Georgia company gave the FPC jurisdiction over FP & L under § 201(b) of the Federal Power Act, which grants jurisdiction to the FPC over 'the transmission of electric energy in interstate commerce . . . and the sale of electric energy at wholesale in interstate commerce, but . . . not (over) any other sale of electric energy.' The FPC's conclusion that FP & L energy was commingled with that of the other Florida utility, and thus was transmitted in interstate commerce, was substantially supported by expert opinion that is in accord with the known facts of electricity, and is sufficient to support its jurisdiction. Pp. 454—469.

430 F.2d 1377, reversed and remanded.

Samuel Huntington, Washington, D.C., for petitioner.

Jefferson D. Giller, Houston, Tex., for respondent.

Mr. Justice WHITE delivered the opinion of the Court.

We are asked to determine whether the Federal Power Commission exceeded its statutory authorization when it asserted jurisdiction over the Florida Power & Light Co. Section 201(b) of the Federal Power Act, as amended, 49 Stat. 847, 16 U.S.C. § 824(b), grants the Federal Power Commission jurisdiction over 'the transmission of electric energy in interstate commerce and . . . the sale of electric energy at wholesale in interstate commerce, but . . . not (over) any other sale of electric energy . . ..' Section 201(c) defines energy transmitted in interstate commerce as energy 'transmitted from a State and consumed at any point outside thereof.'1 In Connecticut Light & Power Co. v FPC, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945), we noted that by this definition the initial jurisdictional determination 'was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.' Id., at 529, 65 S.Ct. 749, 755; FPC v. Southern California Edison Co., 376 U.S. 205, 209 n. 5, 84 S.Ct. 644, 647, 11 L.Ed.2d 638 (1964).

In the case now before us the FPC hearing examiner and the Commission itself, utilizing two scientific tests, determined that the Florida Power & Light Co. (FP & L) generates energy that is transmitted in interstate commerce. They therefore held the company subject to the Commission's jurisdiction. Respondent FP & L argues that an alternative model better represents the flow of its electricity; by use of this model it purports to demonstrate that its power has not flowed in interstate commerce. The Court of Appeals for the Fifth Circuit rejected the FPC's tests as 'not sufficient to prove the actual transmission of energy interstate.' 430 F.2d 1377, 1383 (1970). It did not approve FP & L's test ('Both (the FPC and the FP & L tests) suffer from the same vice,' id., at 1385), but because the FPC must shoulder the burden of proof, its finding of jurisdiction was set aside.

We granted certiorari to determine if either of the FPC's tests provides an acceptable basis at law and a sufficient basis in fact for the establishment of jurisdiction. 401 U.S. 907, 91 S.Ct. 873, 27 L.Ed.2d 805 (1971).


FP & L is Florida's largest electric utility. At the time relevant to this litigation it served nearly one million customers, ranked ninth nationally among electric companies in revenues, 14th in investment in gross utility electric plant, and 16th in kilowatt-hour sales. Despite this significant size, the peninsular nature of Florida, the concentration of the company's sales in the southern part of the State,2 and the recurrent threat of hurricanes which might sever power lines combine to make the operations of the company unusually insular and independent of the operations of like companies in other States. All of FP & L's equipment, including transmission lines, is confined to Florida and none of its lines directly connect with those of out-of-state companies.

FP & L does, however, indirectly connect with out-of-state companies. As a member of the Florida Pool, it is interconnected with the Florida Power Corp. (Corp),3 the Tampa Electric Co., the Orlando Utilities Commission, and the City of Jacksonville. These interconnected utilities and authorities coordinate their activities and exchange power as circumstances require.4 In 1964 FP & L transferred over 107 million kwh to Corp and received over 61 million kwh from Corp.5 If power from FP & L flows in interstate commerce it is because Corp interconnects just short of Florida's northern border with Georgia Power Co.6 and regularly exchanges power with it.7 Georgia's lines transmit the power out of or into Florida. There are numerous instances in which transfers between Georgia and Corp are recorded as coinciding with transfers between Corp and FP & L.8

The Georgia-Corp interconnection serves another function. Corp, FP & L, and the other Florida Pool participants are members of the Interconnected Systems Group (ISG), a national interlocking of utilities that automatically provides power in case of emergencies. In time of emergency this power also would flow through Corp's links with Georgia. To date FP & L has had no occasion to call for ISG power. But when a midwestern utility sustained a 580-megawatt generating loss, a regularly scheduled 8-megawatt FP & L contribution to the Florida Pool coincided with an 8-megawatt contribution from the pool to the ISG system.

These relationships establish the focal issue in this case. The FPC may exercise jurisdiction only if there is substantial evidentiary support for the Commission's conclusion that FP & L power has reached Georgia via Corp or that Georgia's power has reached FP & L because of exchanges with Corp. What happens when FP & L gives power to Corp and Corp gives power to Georgia (or vice versa)? Is FP & L power commingled with Corp's own supply, and thus passed on with that supply, as the Commission contends? Or is it diverted to handle Corp's independent power needs, displacing a like amount of Corp power that is then passed on, as respondent argues? Or, as the Commission also contends, do changes in FP & L's load or generation, or that of others in the interconnected system, stimulate a reaction up and down the line by a signal or a chain reaction that is, in essence, electricity moving in interstate commerce? Upon answer to these questions, jurisdiction rides.

If FP & L were directly involved in power exchanges with Georgia, there would be no serious question about the resolution of this case. Section 201 of the Federal Power Act owes its origin to the determination of this Court that a direct transfer of power from a utility in Rhode Island to a utility in Massachusetts is in interstate commerce. See Public Utilities Comm'n v. Attleboro Steam & Electric Co., 273 U.S. 83, 47 S.Ct. 294, 71 L.Ed. 549 (1927). 'Part II (of the Act) is a direct result of Attleboro.' United States v. Public Utilities Comm'n of California, 345 U.S. 295, 311, 73 S.Ct. 706, 715, 97 L.Ed. 1020 (1953). There can be no doubt that § 201 achieves its end and fills the 'Attleboro gap' by giving the FPC jurisdiction over direct exchanges. Connecticut Light & Power Co. v. FPC, 324 U.S. 515, 65 S.Ct. 749, 89 L.Ed. 1150 (1945).

Nor would there be any difficulty in resolving this case if the company or companies that stood between FP & L and the out-of-state power companies could be shown to be sometimes no more than a funnel. In Jersey Central Power & Light Co. v. FPC, 319 U.S. 61, 63 S.Ct. 953, 87 L.Ed. 1258 (1943), the first of the major FPC jurisdictional cases to be considered by this Court, Jersey Central supplied power to the Public Service Electric & Gas Co. (also a New Jersey company), which in turn had exchange arrangements with Staten Island Edison Corp. (a New York company). The transfer from PSE & G to Staten Island was effected through a 'bus'—a transmission line of three conductors into which a number of subsidiary lines connect. The FPC showed through extensive sampling of the logs of the relevant companies, that on at least a dozen occasions when Staten Island drew power from the bus only Jersey Central was supplying the bus. Thus, the intermediate presence of PSE & G was shown to be, in some circumstances, a null factor, and it was established that Jersey Central energy was moving in interstate commerce.

In the litigation before us the record does not disclose situations in which Corp operated as a null or insufficient factor. Thus, the FPC has not in this litigation demonstrated with the clarity and certainty obtaining in the Jersey Central case that the energy flows that are a prerequisite to jurisdiction occurred.

This is not, however, the equivalent of saying that the flows did not occur or that there was not substantial evidence for concluding that they did. The Court of Appeals was hardly less emphatic than the Federal Power Commission in its conclusion that FP & L's 'proof' that the flows did not occur was unconvincing. The court purported to have no opinion whether the flows had actually occurred. The question that must be resolved, therefore, is whether the evidence presented, though not so certain and convincing as that which the FPC offered in Jersey Central, was nonetheless adequate to establish jurisdiction.

We turn first to the conflicting contentions of the parties.


The Federal Power Commission followed alternate routes to its conclusion that FP & L energy moved in interstate commerce. The first course, based on what the Commission called the electromagnetic unity of response of interconnected electrical...

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