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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 2003 Decided February 18, 2003
No. 01–1487
ENTERGY SERVICES, INC.
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
TENASKA, INC., ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
J. Wayne Anderson argued the cause for petitioner. With
him on the briefs was Floyd L. Norton IV.
Andrew W. Tunnell was on the brief for amicus curiae
Southern Company Services, Inc. in support of petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Laura J. Vallance, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
the brief were Cynthia A. Marlette, General Counsel, and
Dennis Lane, Solicitor.
Ashley C. Parrish argued the cause for intervenors Tenas-
ka, Inc. and Washington Parish Energy Center, LLC. With
her on the brief were Neil L. Levy, Larry F. Eisenstat and
M. Eric Eversole.
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Entergy Services, Inc. petitions for
review of two orders of the Federal Energy Regulatory
Commission resolving whether some or all transmission cus-
tomers should pay for a class of network upgrades to an
electric utility’s transmission grid whose purpose is to protect
those generators and equipment in the vicinity of a new
interconnecting generator against fault currents. The Com-
mission found that two of Entergy’s Interconnection and
Operating Agreements calling for ‘‘direct assignment’’ of costs
to the new interconnecting generators of systems upgrades to
remedy short-circuit and stability problems were inconsistent
with Commission policy and accepted the proposed Agree-
ments subject to revision of the credit provisions. Entergy
Servs., Inc., 95 F.E.R.C. ¶ 61,437, at 62,610–11 (2001) (‘‘Initial
Order’’). Because the Pro Forma Interconnection and Oper-
ating Agreement (‘‘Pro Forma IA’’) in Entergy’s Open Access
Transmission Tariff (‘‘tariff’’) also contained a direct assign-
ment provision for this class of network upgrades, the Com-
mission ordered Entergy to revise it. Id. at 62,611. In
denying rehearing, the Commission rejected Entergy’s argu-
ments that the policy reflected in the Initial Order was
inconsistent with Commission precedent, inappropriately up-
sets the balance of costs and responsibilities for interconnec-
tion upgrades, and improperly directed revision of a previous-
ly approved tariff not at issue. The Commission reiterated
that its policy has been that all transmission customers must
share the costs of network upgrades because ‘‘the integrated
3
transmission grid is a cohesive network,’’ and the upgrades
‘‘benefit all users, not just the newly-interconnecting genera-
tor.’’ Entergy Servs., Inc., 96 F.E.R.C. ¶ 61,311, at 62,202
(2001) (‘‘Rehearing Order’’) (emphasis in original).
In challenging the Commission’s orders, Entergy, joined by
amicus Southern Company Services, Inc., renews its conten-
tion that the Initial Order conflicts with Commission prece-
dent that required direct assignment of costs to a new
generator of short-circuit and stability network upgrades
necessitated by its interconnection to the transmission grid,
and contends that in changing its policy the Commission
failed to provide a reasoned explanation, a hearing or com-
mencement of a rulemaking proceeding. Entergy disputes
the Commission’s conclusion that new generator interconnec-
tions benefit all users on the transmission grid, maintaining
that, contrary to the Commission’s cost-causation pricing
methodologies, the Initial Order shifts generation intercon-
nection costs from the interconnecting party to other trans-
mission customers and captive ratepayers who do not benefit
from the interconnection. Entergy further contends that the
Commission improperly ordered revision of two bilaterally
executed contracts without any hearing or investigation to
determine that they and Entergy’s Pro Forma IA in its tariff
were contrary to the public interest.
We hold first, that although Entergy’s challenge regarding
the GenPower Keo, LLC Interconnection and Operating
Agreement is moot, the appeal is not moot because the
Commission required Entergy to alter its Pro Forma IA in
its tariff. We hold second, that the Commission did not act in
an arbitrary and capricious manner by clarifying its policy
regarding credits for short-circuit and stability network up-
grades and provided a reasoned explanation for its change in
policy. We hold third, that there is sufficient support for the
Commission’s conclusion that its pricing policy provides a
systemwide benefit for all users of Entergy’s grid, and,
therefore, Entergy’s Pro Forma IA in its tariff was unjust
and unreasonable, and that the Commission did not otherwise
violate the Federal Power Act (‘‘FPA’’), 16 U.S.C. § 824e
(2000). Accordingly, we deny the petition for review.
4
I.
Consistent with the Commission’s decision in Tennessee
Power Co., 90 F.E.R.C. ¶ 61,238 (2000), that interconnection is
an element of transmission service and must be offered under
the terms of Order No. 888’s pro forma tariff, Entergy
submitted a Pro Forma IA and proposed procedures and
requirements for adding generation to Entergy’s transmission
system. The Commission, by Order of May 18, 2000, accept-
ed Entergy’s proposals for filing, subject to various modifica-
tions. See Entergy Servs., Inc., 91 F.E.R.C. ¶ 61,149, at
61,556 (2000) (‘‘May 18 Order’’). The Commission ordered
that Entergy include, in a compliance filing, its Pro Forma IA
and interconnection procedures in its tariff, and a complete
explanation of the crediting procedures for ‘‘Optional System
Upgrades,’’ defined as increases to Entergy’s transmission
capability. Id. at 61,559–60. As proposed and accepted for
filing, then, Entergy’s Pro Forma IA provided credits against
future transmission charges only for ‘‘Optional’’ network up-
grades, while directly assigning to the new interconnecting
generator the costs for ‘‘Required’’ network upgrades, defined
as upgrades ‘‘necessary for safe and reliable interconnection
of a new generator, regardless of whether there is output
from the generator,’’ id. at 61,560, and included short-circuit
and stability upgrades. See Initial Order, 95 F.E.R.C. at
62,611.
The petition, as filed, involves the Interconnection and
Operating Agreements (‘‘IAs’’) that Entergy executed with
two electric power generators—Washington Parish Energy
Center, LLC, and GenPower Keo, LLC. In accord with the
May 18 Order and the Pro Forma IA, the IAs required these
generators to bear the costs of the short-circuit and stability
upgrades necessary to prevent their interconnection to Enter-
gy’s grid from undermining the integrity of the grid. The
Commission accepted the IAs subject to revision, in light of
the Commission’s May 17, 2001 clarification in Consumers
Energy Co., 95 F.E.R.C. ¶ 61,233 (2001), to allow the genera-
tors to receive transmission credits for the costs of these
network upgrades once the generators were connected to the
transmission system; the Commission also ordered that the
5
Pro Forma IA in the tariff approved in the May 18 Order be
similarly revised. Initial Order, 95 F.E.R.C. at 62,611. On
rehearing, the Commission rejected Entergy’s arguments,
including its argument that the Commission’s order was
inconsistent with its precedent, explaining that allowing
transmission credits for these types of network upgrades is
consistent with long-standing Commission policy and that
language in earlier Commission orders suggesting to the
contrary was inadvertent. Rehearing Order, 96 F.E.R.C. at
62,201–02.
II.
As a threshold matter, the Commission contends that the
court lacks jurisdiction to consider Entergy’s challenge re-
garding the GenPower IA because it is moot. In response to
Entergy’s request, the Commission states in its brief that it
approved termination of the GenPower IA effective May 16,
2002. Entergy does not dispute this assertion. Under the
circumstances, then, this portion of Entergy’s appeal is moot.
See Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.22 (1997); Pub. Util. Comm’n of California v. FERC, 236
F.3d 708, 713–16 (D.C. Cir. 2001); Northwest Pipeline Corp.
v. FERC, 863 F.2d 73, 76 (D.C. Cir. 1988).
Entergy correctly states, however, that the appeal itself is
not moot. Entergy does not challenge in its Reply Brief the
assertion by intervenors Tenaska, Inc. and Washington Par-
ish Energy Center, LLC that because the Washington Parish
IA does not require any network upgrades and Entergy has
not awarded any, there are ‘‘serious questions whether the
hardship that Entergy has allegedly suffered has ‘the con-
crete quality and immediacy necessary to invoke judicial
review.’ ’’ Intervenors’ Br. at 28 (quoting Tennessee Gas
Pipeline Co. v. FERC, 736 F.2d 747, 748 (D.C. Cir. 1984)).
However, the Initial Order directed Entergy to revise its Pro
Forma IA in its tariff to be consistent with Consumers
Energy, 95 F.E.R.C. ¶ 61,233. Thus, the court has jurisdic-
tion to consider Entergy’s challenge to the Pro Forma IA,
which provides standardized procedures and agreements
6
when generators seek to interconnect on Entergy’s transmis-
sion system. Entergy states that it has filed approximately
sixteen IAs providing, consistent with its revised Pro Forma
IA, credits for ‘‘Required’’ network upgrades and has with-
held execution of these agreements pending this appeal. See
Reply Br. at 23. Thus, as Entergy points out, it is aggrieved
by the Initial Order and is suffering ongoing harm that can
be redressed by a favorable judicial decision. See Spencer v.
Kemna, 523 U.S. 1, 17 (1998); Iron Arrow Honor Soc’y v.
Heckler, 464 U.S. 67, 70 (1983); United States v. Weston, 194
F.3d 145, 148 (D.C. Cir. 1999).
III.
Turning to Entergy’s challenge to the Commission’s global
revision to the Pro Forma IA, our review of the Commission’s
orders is pursuant to the arbitrary and capricious standard of
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). See
Process Gas Consumers Group v. FERC, 292 F.3d 831, 836
(D.C. Cir. 2002). An agency’s interpretation of its own
precedent is entitled to deference by the court. See Cassell v.
FCC, 154 F.3d 478, 483 (D.C. Cir. 1998). Further, in light of
the technical nature of rate design, involving policy judg-
ments at the core of the regulatory function, the court’s
review of challenges to rate design as unjust and unreason-
able is highly deferential. See Sithe/Independence Power
Partners v. FERC, 165 F.3d 944, 948 (D.C. Cir. 1999).
A.
Insofar as Entergy’s challenge to the Commission’s orders
rests on the contention that the Commission impermissibly
departed from its precedent, it is without merit. Entergy
relies on cases holding that while an agency may change its
policy based on its view of the public interest, see Greater
Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir.
1970), it must provide ‘‘a reasoned analysis indicating that
prior policies and standards are being deliberately changed,
not casually ignored,’’ id., and contends that the Commission
7
failed to do so. See also Cross–Sound Ferry Servs., Inc. v.
ICC, 873 F.2d 395, 398 (D.C. Cir. 1989).
On rehearing the Commission acknowledged that language
in certain of its prior orders could be read to permit the
direct assignment of the costs of short-circuit and stability
network upgrades. Rehearing Order, 96 F.E.R.C. at 62,202.
The Commission referred to Consumers Energy, 95 F.E.R.C.
at 61,804 & n.9, reh’g denied, 96 F.E.R.C. ¶ 61,132, at 61,559–
60 (2001), where the Commission had corrected what it
characterized as ‘‘inadvertent’’ language in American Electric
Power Service Corp., 91 F.E.R.C. ¶ 61,308, at 62,051–52
(2000), and other orders, suggesting that a generator receives
transmission credits only when the network upgrades are
needed to remove overloads and not when network upgrades
are needed to address short-circuit and stability problems.
Rehearing Order, 96 F.E.R.C. at 62,201–02. Citing Public
Service Company of Colorado, 59 F.E.R.C. ¶ 61,311 (1992),
reh’g denied, 62 F.E.R.C. ¶ 61,013, at 61,060–62 (1993) (‘‘PSC
of Colorado’’), where it declined to depart from its policy
prohibiting direct assignment of grid facilities that benefit all
customers even if grid facilities would not be installed ‘‘but
for’’ a particular customer’s service, the Commission in Con-
sumers Energy stated that its ‘‘long-standing policy prohibits
direct assignment of network facilities, and failure to provide
credits for network upgrades made to remedy short-circuit
and stability problems would violate that precedent.’’ Con-
sumers Energy, 95 F.E.R.C. at 61,804. The Commission
ordered Consumers Energy to revise its crediting provisions
to allow crediting for network upgrades necessary to remedy
short-circuit and stability problems, stating that by requiring
credits for these upgrades, ‘‘the Commission was enforcing its
prohibition against ‘and’ pricing.’’ Id.
Consequently, we conclude that even if the Commission’s
orders constitute more than a mere clarification of policy, as
Entergy maintains, the Commission provided a reasoned
explanation for the change in policy. In the orders on review,
the Commission was clarifying inadvertent statements in
prior orders that would have allowed ‘‘and’’ pricing, where a
customer pays for use of the grid at its incremental expansion
8
cost and later is also charged for use of the grid at its average
cost. See Pennsylvania Elec. Co., 58 F.E.R.C. ¶ 61,278, reh’g
denied, 60 F.E.R.C. ¶ 61,034, at 61,127 (1992). Otherwise the
Commission’s rejection of ‘‘but for’’ pricing arguments, equat-
ing pricing use of the grid based on incremental cost to
expand the grid (‘‘but for’’ costs) with the prohibited direct
assignment of grid costs, was consistent. Entergy points to
the statement in Removing Obstacles to Increased Electric
Generation and Natural Gas Supply in the Western United
States, 94 F.E.R.C. ¶ 61,272, at 61,970 (2001), further order,
95 F.E.R.C. ¶ 61,225, at 61,767 n.24 (2001) (‘‘Removing Obsta-
cles’’), that the Commission’s ‘‘policy had been to allow the
cost of interconnection and the cost of certain incremental
system upgrades to be borne by those loads or supplies on
the margin.’’ Removing Obstacles, 95 F.E.R.C. at 61,767
n.24. But its reliance is misplaced, for the Commission
responds appropriately that while ‘‘modif[ying] the option to
price certain transmission service at an incremental rate,’’ the
language leaves undisturbed ‘‘the policy of providing credits
for network upgrades.’’ Respondent’s Br. at 28 (quoting
Removing Obstacles, 96 F.E.R.C. ¶ 61,155, at 61,674 (2001)).
Entergy fails to reference the third order in the line of
Removing Obstacles orders.
B.
Somewhat more problematic for the Commission is Enter-
gy’s contention that the Commission was arbitrary and capri-
cious because its allowance of credits is based on the errone-
ous view that short-circuit and stability network upgrades
benefit all users of the transmission system. Entergy main-
tains that instead of benefitting the entire system, these
short-circuit and stability upgrades benefit only the generator
connecting to the transmission system. Entergy rejects the
notion that by preventing degradation of the reliability of the
transmission system, these upgrades enhance the system and
thereby benefit all users. Absent expansion of the capacity
or enhancement of the reliability of the system beyond that
which existed prior to the new interconnection, there is, in
Entergy’s view, no benefit to all system users. Responding
9
to the Commission’s focus on incentives to spur interconnec-
tion of new generation and the need to ease entry for
competing generation, Entergy characterizes the Commis-
sion’s incentives as a subsidy, reducing costs for one market
participant at the expense of others. Upon review of the
Commission’s orders, we ultimately conclude that the Com-
mission supplied sufficient reasoning for its policy judgment.
See Western Massachusetts Elec. Co. v. FERC, 165 F.3d 922,
927–28 (D.C. Cir. 1999) (quoting Pennsylvania Elec. Co. v.
FERC, 11 F.3d 207, 211 (D.C. Cir. 1993)). See also Sithe, 165
F.3d at 948.
The Commission stated on rehearing that:
As we noted in Consumers Energy, the integrated
transmission grid is a cohesive network whose ex-
pansion benefits all users of the grid. Even if they
do not increase network capacity, short-circuit and
stability-related upgrades that facilitate network ex-
pansion benefit all users, not just the newly-
interconnecting generator, since the grid is continu-
ously expanding and all users of the grid benefit
from its continued stability.
Rehearing Order, 96 F.E.R.C. at 62,202 (emphasis in origi-
nal). Entergy attacks such statements as conclusory and
circular. There is some merit to this position. The Commis-
sion’s view stems from its previous decisions concluding that a
larger system is a better system. See, e.g., PSC of Colorado,
62 F.E.R.C. at 61,061. Still PSC of Colorado does little to
offer a rationale.
It is true the Commission said more on rehearing, noting
that the reliability upgrades ‘‘are crucial to protect other
generators and equipment in the vicinity of the new generator
against potential damage resulting from fault currents.’’ Re-
hearing Order, 96 F.E.R.C. at 62,202 n.27 (quoting Consum-
ers Energy, 96 F.E.R.C. at 61,561). Entergy does not chal-
lenge this as a factual statement and its description of its
experience in attracting interconnection suggests that such
protection is of benefit to it. Indeed, in Western Massachu-
10
setts, the court recognized that upgrades designed to ‘‘pre-
serve the grid’s reliability’’ constitute ‘‘system enhancements
[that] are presumed to benefit the entire system.’’ 165 F.3d
at 923, 927. On rehearing, the Commission also stated that
by prohibiting ‘‘and’’ pricing, the crediting policy ‘‘merely
places new generators on an equal footing with pre-existing
generators owned by utilities’’ with regard to interconnection
costs and that rather than ‘‘sending the wrong price signals,’’
its policy ‘‘will promote the interconnection of generation that
is sorely needed in various regions of the country.’’ Rehear-
ing Order, 96 F.E.R.C. at 62,203. Entergy’s attack on the
Commission’s focus on the need for incentives for generation
in certain regions may be, to some extent, well founded. It
asserts in its Reply Brief that some markets, such as Texas,
relied on by intervenors Tenaska, Inc. and Washington Parish
Energy Center, LLC, are unique, and that Entergy’s own
experience indicates that generation occurs without subsidiza-
tion as the location for new generation is often dictated by the
proximity of natural gas pipelines and the ability to sell power
beyond Entergy’s service area.
Our conclusion that the Commission has adequately set
forth its rationale, however, rests on its explanation in the
Consumers Energy decisions that the Commission relied
upon in the orders on review. See Initial Order, 95 F.E.R.C.
at 62,611; Rehearing Order, 96 F.E.R.C. at 62,201–03 & nn.17
& 19. In addition to evidence that these reliability upgrades
are crucial to protect generation and other equipment in the
vicinity of the new generator from fault currents, the Com-
mission explained in denying rehearing in Consumers Energy
that ‘‘[h]aving a standard policy that requires credits for
customer-funded network upgrades minimizes the incentive
for utilities to ‘gold plate’ their systems at customers’ ex-
pense, and thereby reduces the potential for disputes TTT
over what constitutes a necessary upgrade.’’ Consumers
Energy, 96 F.E.R.C. at 61,560. Further, the Commission
explained, its crediting policy creates more accurate price
signals by placing ‘‘new generators on an equal footing with
pre-existing, utility-owned generators whose transmission
costs generally were rolled into [the] transmission rate base.’’
Id.
11
The Commission’s rationale for crediting network up-
grades, based on a less cramped view of what constitutes a
‘‘benefit,’’ reflects its policy determination that a competitive
transmission system, with barriers to entry removed or re-
duced, is in the public interest. That Entergy would confine
‘‘benefits’’ to increases in capacity of the transmission system
or to enhancements other than maintained stability in an
expanded system, while not an implausible approach, over-
looks the Commission’s long-held view of the benefits of
expansion and the role of network system upgrades. Enter-
gy’s attempt to challenge the Commission’s view of ‘‘benefit’’
by distinguishing its precedent does not negate the consistent
application of the Commission’s long-held view. While Enter-
gy points out, for example, that PSC of Colorado addressed
direct assignment of radial transmission facilities to serve
remote native load and not interconnection of generation or
direct assignment of facilities necessary for interconnection,
the Commission’s crediting policy for short-circuit and stabili-
ty upgrades is consistent with its view in that case that the
transmission grid is an integrated whole. See PSC of Colora-
do, 62 F.E.R.C. at 61,061. Moreover, the Commission points
out, because PSC of Colorado was decided when generation
and transmission were predominantly offered as a bundled
service, ‘‘the exact functionalization of costs between genera-
tion and transmission was not a critical issue.’’ Respondent’s
Br. at 10. When confronted with that issue the Commission
concluded that such system enhancements benefit the entire
system. In Western Massachusetts, for example, the Com-
mission stated there was a systemwide benefit based on three
considerations: (1) ‘‘the physical configuration of the up-
grades makes it clear that their purpose is not merely to
provide a power path from the [new] facility to the [transmis-
sion] grid TTT but to enhance a system used by many custom-
ers’’; (2) ‘‘loadflow over the upgraded grid facilities will not
remain constant’’; and (3) ‘‘it cannot be determined for sure
that the upgrades would merely restore the transfer capabili-
ty of the [transmission] grid to the precise level that existed
prior to the [new] interconnection.’’ Western Massachusetts,
165 F.3d at 927.
12
While Entergy does not view the expanded transmission
system as an enhanced system over the fault-free system that
existed prior to an interconnection by a new generator, we
conclude that in light of the regulatory expertise to which
courts owe deference, the Commission has reasonably ex-
plained that its crediting pricing policy avoids both gold
plating and less favorable price signals such that the enlarged
transmission system, which it views as a public good, can
function reliably and continue to expand. Consequently, we
conclude there is adequate support for the Commission’s
determination that short-circuit and stability network up-
grades are an enhancement that benefits all users.
Entergy’s other challenges to the Commission’s pricing
policy fare no better. Entergy’s contention that the Commis-
sion acted unlawfully because it failed to undertake a factual
analysis of the short-circuit and stability upgrades to deter-
mine whether they provide system benefits ignores the fact
that the Commission relied on Entergy’s statements regard-
ing the problems the upgrades were designed to resolve, as
Entergy noted in its Rehearing Request. See Rehearing
Order, 96 F.E.R.C. at 62,202 n.21. Regarding Entergy’s
subsidy contention, the Commission has long rejected the
argument that transmission credits for network upgrades
result in ‘‘cross subsidization’’ by native load customers as
based on the faulty premise that native load customers re-
ceive no benefit from the upgrades; no subsidization occurs
except where customers pay for other customer’s sole use
facilities. See PSC of Colorado, 62 F.E.R.C. at 61,062. En-
tergy’s reliance on a statement in Order No. 2000 concerning
averaging or socialization of costs is misplaced; the Commis-
sion was referring to congestion management costs that do
not involve generator interconnection. See Regional Trans-
mission Organizations, Order No. 2000, FERC Stats. &
Regs. ¶ 31,089, at 31,219 (1999), 65 Fed. Reg. 810 (2000), on
reh’g, Order No. 2000–A, FERC Stats. & Regs. ¶ 31,092, 65
Fed. Reg. 12,088 (2000) (codified at 18 C.F.R. § 35.34), aff’d,
Pub. Util. Dist. No. 1 v. FERC, 272 F.3d 607 (D.C. Cir. 2001).
Order No. 2000 states that generally cost causation principles
should be followed ‘‘[w]here possible and cost effective,’’
13
leaving open the possibility of cost averaging in some cases.
Id. Hence, Entergy fails to point to anything in Order No.
2000 that would undermine the Commission’s finding that
crediting network upgrades will send the proper pricing
signals and result in the economically efficient outcomes.
Entergy’s adoption of amicus Southern’s contention that the
Initial Order and the Rehearing Order are contrary to sec-
tions 721 and 722 of the Energy Policy Act of 1992, 16 U.S.C.
§§ 824j, 824k (2000), is not properly before the court; this
statutory argument was not raised in Entergy’s initial brief,
see Michel v. Anderson, 14 F.3d 623, 625 (D.C. Cir. 1994), nor
raised on rehearing to the Commission as required under the
FPA § 313(b), 16 U.S.C. § 825l(b). See United Distrib. Cos.
v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
C.
Finally, Entergy essentially revives its ‘‘but for’’ argument
in contending that the Commission failed to investigate and
address the underlying facts in its cost allocation decisions
and hence, without a hearing, unlawfully ordered modification
of Entergy’s Pro Forma IA provisions in its tariff. As the
Commission stated on rehearing, ‘‘[u]nder FPA Section 206,
16 U.S.C. § 824e (2000), the Commission may require a public
utility to revise its tariff to reflect a Commission policy
determination that the existing tariff is unjust and unreason-
able and that the required change is just and reasonable,’’
and ‘‘may take action under Section 206 in a proceeding that
began as a Section 205 proceeding.’’ Rehearing Order, at
62,203 n.34 (citing Sea Robin Pipeline Co. v. FERC, 795 F.2d
182, 184 (D.C. Cir. 1986)). Absent any new argument to
rebut the Commission’s long-standing rejection of direct as-
signment of network costs, the Commission’s determination
that the Pro Forma IA was unjust and unreasonable is amply
supported. See Consumers Energy, 96 F.E.R.C. at 61,560 &
n.21.
Nor did the Commission abuse its discretion in finding that
a formal oral evidentiary hearing was neither necessary nor
required. See Arkansas Elec. Energy Consumers v. FERC,
14
290 F.3d 362, 369–70 (D.C. Cir. 2002). Entergy had a full
opportunity to present its views in its filings, and it fails to
point to any evidence that could have been submitted or
developed only through additional evidentiary procedures.
Further, because Entergy never raised on rehearing the
argument that the Mobile-Sierra public interest standard, see
United Gas Pipe Line Co. v. Mobile Gas Service Corp, 350
U.S. 332, 345 (1956); Federal Power Commission v. Sierra
Pacific Power Co., 350 U.S. 348, 355 (1956), should be em-
ployed to review its tariff filing, the argument is not properly
before the court, see FPA § 313(b), 16 U.S.C. § 825l(b);
United Distributors, 88 F.3d at 1170; the record references
that Entergy supplies in its Reply Brief refer only to its
argument that the Commission failed to hold an evidentiary
hearing and to give notice, and failed to explain why direct
assignment of costs is unjust or unreasonable.
Accordingly, we deny the petition for review.