Federal Power Commission

“ It does mean that we must adhere to the express Congressional mandate that the public interest which underlies the Federal Power Act involves the protection of particular matters of intimate concern to the people of the States in which proposed projects requiring the sanction of the Federal Power Commission are to be located. ”

“ But a court of equity has inherent powers to invite such help from a great agency of the Government. While the Federal Power Commission could, if it chose, decline to render that help, it is inconceivable that it would do so. As to the intermediate purchasers, subject not to the Power Commission but to State or city regulation, the local agencies could be similarly resorted to for aid in the ultimate problem before the lower court of distributing a commingled fund as to which none of the interested parties can fairly be said, as a matter of law, to have an obvious, demonstrated claim. ”

“ But we cannot agree that the inability of the Federal Power Commission to grant relief requires that courts be similarly disabled. Courts, unlike administrative agencies, are organs with historic antecedents which bring with them well-defined powers. ”

“ If Congress left this part of the public domain for exploitation by private power groups, why did it gear them to the employment requirements of the post-war period and the budget requirements of the Federal Government? Approval of the projects by Congress under these various terms and conditions can only mean one thing-that Congress gave its sanction to their development as public projects.
To be sure, Congress in the Federal Power Act left part of the public domain to be exploited by private interests, if the Federal Power Commission so orders. ”

“ Federal Power Commission (certiorari granted 343 U.S. 941, 72 S.Ct. 1034) . Abstract propositions may not solve concrete cases, but, when basic confusion is responsible for a particular result, resort to the fundamental principles which determine the position of the administrative process in our system may help to illuminate the shortcomings of that result.
The Act, like many regulatory measures, sketches a general outline which contemplates its completion and clarification by the administrative process before court review or enforcement. ”

“ The only reason for the intervention of an administrative body is to exercise a grant of unexpended legislative power to weigh what the legislature wants weighed, to reduce conflicting abstract policies to a concrete net remainder of duty or right. ”

“ Respondents say, however, that decisions of policy in the construction of power projects have been entrusted to the Commission, or at most also to the Secretary of the Army, under whom the Corps of Engineers performs its statutory functions of making surveys and constructing public works, and that the interests of petitioners arise only after a public project has been constructed and the Secretary of the Army has determined that there is excess power to be distributed and sold. ”

“ It is that condition of affairs which the Commission is given power to correct, and it is against that condition of affairs, and not some other, that the Commission is authorized to protect the public. Official powers cannot be extended beyond the terms and necessary implications of the grant. If broader powers be desirable, they must be conferred by Congress. ”

“ A third factor, in addition to the statutory scheme and legislative history of § 201 (d) , is the rejection of respondents' contention by the Commission and courts. Three circuits have just recently done so, [24] and the Federal Power Commission's long assertion that it has authority over rates of sales to municipalities has probably risen to the dignity of an agency 'policy.' [25] We have often stated our sympathy with established administrative interpretations such as this. ”

“ My disagreement with the Court arises primarily from its view that it makes no difference how the Commission reached the rate fixed so long as the result is fair and reasonable. For me the statutory command to the Commission is more explicit. Entirely aside from the constitutional problem of whether the Congress could validly delegate its rate making power to the Commission, in toto and without standards, it did legislate in the light of the relation of fair and reasonable to fair value and reasonable return. The Commission must therefore make its findings in observance of that relationship. ”

“ It is as clear as it is unlimited: "The Commission shall also have power * * * to make rules and regulations for the purpose of carrying out the provisions of [Section 5] ." Ambiguous legislative history cannot change the express legislative intent. The Commission is using rule-making to carry out what the Congress agreed was among its central purposes: expedited administrative enforcement of the national policy against monopolies and unfair business practices. ”

“ The Commission's responsibility at all times is to measure applications by the standard of 'public convenience, interest, or necessity.' The Commission originally found respondent's application inconsistent with the public interest because of an erroneous view regarding the law of Pennsylvania. The Court of Appeals laid bare that error, and, in compelling obedience to its correction, exhausted the only power which Congress gave it. ”

“ Upon these and other facts set forth in the certificate, which we deem it unnecessary to recite, the following questions are certified:
'1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office', restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named? ”

“ I do not understand the Court to suggest that the Federal Power Act endowed the Commission and the Court of Appeals with authority to decide any issues of state law if such law were deemed controlling, or that had the Court of Appeals undertaken to do so, such a determination would have foreclosed re-examination of such a decision in other proceedings. ”

“ We cannot assume that Congress was of the opinion that the present agency, when appropriately organized for the purpose, would be any the less able to function without the power in the Administrator to delegate the signing and issuance of subpoenas than the Federal Trade Commission, the Interstate Commerce Commission, and other agencies which have not been given and do not assert the power. ”

“ In other words, we believe the Commission's position can draw no support from the Senate's deliberations over the bill granting the Commission enforcement power that emerged from the Senate Commerce Committee following President Wilson's change of heart. The bill that emerged from the Committee contained no provision even remotely supporting the exercise of commission rule-making power to define the statutory standard of illegality contained in the section of the bill granting the agency adjudicatory authority. ”

“ Congress may think it expedient to avoid clashes between state and federal officials in administering an act such as we have here. Conflicts which lead state officials to stand shoulder to shoulder with private corporations making common cause of resistance to federal authority may be thought to be prejudicial to the ends sought by an act and regulation more likely to be successful, even though more limited, if it has local support. Congress may think complete centralization of control of the electric industry likely to overtax administrative capacity of a federal commission. ”

“ This was not a mandate from court to court but from a court to an administrative agency. What is in issue is not the relationship of federal courts inter se-a relationship defined largely by the courts themselves-but the due observance by courts of the distribution of authority made by Congress as between its power to regulate commerce and the reviewing power which it has conferred upon the courts under Article III of the Constitution, U.S.C.A. A review by a federal court of the action of a lower court is only one phase of a single unified process. ”

“ Congress annually receives a report of the Commission's work and appropriates the funds for its continuance. If it thinks the Commission is overextending its attention to trivial situations. it has ready means of control in its hands. The wisdom of its work is not our concern, but only its legal justification. We do not find that Congress has conditioned the jurisdiction of the Commission upon any particular volume or proportion of interstate energy involved, and we do not think it would be appropriate to supply such a jurisdictional limitation by construction. ”

“ Federal Power Commission, 324 U.S. 635, 649, and see 650-651, 65 S.Ct. 821, 828, 829, 89 L.Ed. 1241. See also, National Labor Relations Board v. Cheney Cal. Lumber Co., 327 U.S. 385, 388-389, 66 S.Ct. 553, 554, 90 L.Ed. 739; and National Labor Relations Board v. Seven-Up Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377, where failure to preserve the issue by objection before the agency was treated as a bar to the judicial consideration of it.↑ 'Sec. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion. ”

“ Procedure Act should be enacted in the standards-setting section. S. Rep. No. 1186, 89th Cong., 2d Sess., 17 (1966) . But the dissenting members argued that the bill's provision of rule-making authority was redundant and that the rule-making provision merely served to "make the [Commission's] authority apparent." Id. at 40. As we suggested earlier, imputing congressional ratification to a disputed administrative construction of its powers is, in the words of the Supreme Court, "shaky business," Power Reactor Development Co. v. Int. Union of Elec., Radio & Machine WKRS, SUPRA, 367 U.S. at 409. ”

“ United States, supra. The Georgia policy, which is opposed to this federal policy, must accordingly give way. For as we noted in Public Utilities Comm. of California v. United States, supra, 355 U.S. at 544, 78 S.Ct. at 453, a State is without power by reason of the Supremacy Clause to provide the conditions on which the Federal Government will effectuate its policies. Whether the federal policy is a wise one is for the Congress and the Chief Executive to determine. ”

“ The Commission's order of January 26, 1937, (a) fixed a date for hearing, (b) required respondents to appear, and (c) required them to produce the information and documents described. In fixing a date for hearing, the order was nothing more than a notice. United States v. Illinois Central R. Co., supra, page 89, 37 S.Ct. 584. The statute confers no authority upon the Commission to enforce its directions to appear, testify or produce books and papers save by application to a federal court under section 307 (c) . ”

“ But whatever reason or combination of reasons led Congress to put the provision in the Act, we think it meant what it said by the words 'but shall not have jurisdiction, except as specifically provided in this Part or the Part next following * * * over facilities used in local distribution.' Congress by these terms plainly was trying to reconcile the claims of federal and of local authorities and to apportion federal and state jurisdiction over the industry. ”

“ Commissioner, supra. It may be waived by any party, including the government. Peoria & P.U. Ry. Co. v. United States, 263 U.S. 528, 535, 536, 44 S.Ct. 194, 197, 68 L.Ed. 427; Industrial Addition Ass'n v. Commissioner, supra. The objection of the City of Cleveland which came after judgment had been rendered came too late. Cf. United States v. ”

“ When used in conjunction with the separate subsidiary concept, accounting serves as a useful regulatory tool for identifying certain abuses. We view separation and accounting as part and parcel of a single regulatory mechanism. At a minimum, a carrier with market power and control over communications facilities essential to the provision of enhanced services could distort the competitive evolution of the enhanced services markets at the expense of the communications ratepayer through cross-subsidization and other anticompetitive behavior. ”

“ The need, then, does not exist to subject carriers to the resale structure if such entities lack the potential to cross-subsidize or to engage in anticompetitive conduct to any significant degree. We believe that with the changes taking place in the competitive makeup of the communications industry our regulatory concerns which give rise to the need for structural separation should be directed at monopoly telephone companies exercising significant market power on a broad geographic basis. ”

“ Thus, it is sometimes appropriate to analyze competition in a separate relevant market comprising the aftermarket.
But in many situations, application of general principles of market definition leads to a conclusion that a relevant market is not limited to the product of a single manufacturer, which is consistent with the Supreme Court’s discussion of the issue. Rather, relevant product markets typically include the products of multiple manufacturers. [67] In a broader market, a single manufacturer’s market share may not be sufficient to establish monopoly power in the relevant market. ”

“ Non-telephone carriers do not have the kind of market power we are concerned with here. Specialized carriers, such as MCI and SPCC, lack local distribution facilities entirely, and have no reservoir of monopoly ratepayers from which to extract the excess profits necessary to cross-subsidize other services. ”

“ NATA has argued, however, that continued regulation is necessary if competition is to have a chance, its concern being the extension of market power by monopoly-based telephone companies. While there may be some validity to NATA's concerns, there are other non-regulatory methods of addressing carrier extension of monopoly power. (See discussion, infra. ) Continued regulation of CPE will not foster a competitive equipment environment. ”