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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 25, 2003 Decided June 6, 2003
No. 02-1034
AMEREN SERVICES COMPANY,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ROLLA MUNICIPAL UTILITIES,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Douglas O. Waikart argued the cause for the petitioner.
Alan J. Statman and Amanda M. Riggs were on brief.
David H. Coffman, Attorney, Federal Energy Regulatory
Commission, argued the cause for the respondent. Cynthia
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
A. Marlette, General Counsel, and Dennis Lane, Solicitor,
Federal Energy Regulatory Commission, were on brief.
Margaret A. McGoldrick was on brief for the intervenor.
Cynthia S. Bogorad entered an appearance.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner Am-
eren Services Company (Ameren) challenges the Federal
Energy Regulatory Commission’s (FERC or Commission)
interpretation of a settlement agreement entered into in 1997
between Ameren and Intervenor Rolla Municipal Utilities
(Rolla). On August 24, 2001, Ameren filed with FERC an
unexecuted Network Integration Transmission Service
Agreement (SA) governing its unbundled transmission service
to Rolla. The Commission accepted the unexecuted SA for
filing but—relying on the aforementioned settlement agree-
ment—rejected Ameren’s calculation of the ‘‘distribution
charge’’ to be paid by Rolla for Rolla’s use of certain facilities
owned and operated by Ameren’s public utility affiliates.
Ameren Servs. Co., 97 F.E.R.C. ¶ 61,067 (2001) (Order Ac-
cepting SA). Ameren filed a request for rehearing, which the
Commission denied, relying once again on the language of the
settlement agreement. Ameren Servs. Co., 97 F.E.R.C.
¶ 61,343 (2001) (Order Denying Rehearing).
On review, Ameren argues that the Commission erred in
finding that the settlement agreement between Ameren and
Rolla unambiguously prohibits Ameren from adjusting Rolla’s
distribution charge in order to take into account costs that
Ameren incurred before the effective date of their agreement.
Ameren further argues that the Commission improperly ig-
nored extrinsic evidence and, in addition, impermissibly
changed its rationale. We disagree and, accordingly, deny
the petition for review.
I.
Ameren acts as the transmission provider and agent for
two public utility affiliates: Central Illinois Public Service
3
Company and Union Electric Company. On October 15,
1997, the Commission approved a settlement agreement be-
tween Union Electric Company and certain of its municipal
customers—including Rolla—to effectuate the transition of
those customers from ‘‘bundled’’ to ‘‘unbundled’’ transmission
service.1 Union Elec. Co., 81 F.E.R.C. ¶ 61,011 (1997). Pur-
suant to that agreement, Ameren filed with the Commission
on October 26, 1999 a document entitled ‘‘Principles Govern-
ing Charges and Loss Factors for Wholesale Direct Assign-
ment Facilities’’ (Principles Document). The Principles Doc-
ument memorialized the agreement among the parties on the
methodology for calculating each municipal customer’s ‘‘distri-
bution charge’’—i.e., the charge for using the Wholesale
Direct Assignment Facilities owned and operated by Amer-
en’s public utility affiliates. See Principles Document §§ A.1–
A.4. A customer’s distribution charge takes effect once the
customer begins to receive unbundled transmission service
from Ameren.
Section A.1 of the Principles Document provides that a
municipal customer’s distribution charge ‘‘shall be calculated
by applying an annual carrying charge of 16.42% to the
original installed cost of Wholesale Direct Assignment Facili-
ties applicable to such customer TTT as shown on the list
attached to this Agreement as Attachment A.’’ Id. § A.1. It
further states that ‘‘[t]he resultant charges for Wholesale
Direct Assignment Facilities (absent adjustment as provided
for below) are also set forth in Attachment A.’’ Id. Attach-
ment A lists Rolla’s preliminary annual distribution charge as
$309,374 and its adjusted annual distribution charge as
$288,811.2 Id. at Attachment A.
1 See Transmission Access Policy Study Group v. FERC, 225
F.3d 667, 682–83 (D.C. Cir. 2000) (per curiam) (discussing FERC’s
orders mandating so-called ‘‘functional unbundling,’’ i.e., the separa-
tion of a utility’s ‘‘wholesale transmission functions’’ from its ‘‘whole-
sale electricity merchant functions’’), aff’d sub nom. New York v.
FERC, 535 U.S. 1 (2002).
2 Rolla’s adjusted annual distribution charge ‘‘reflect[s] the
purchase, by Rolla, of certain distribution facilities serving Rolla.’’
4
The distribution charge ‘‘adjustment[s]’’ referred to in Sec-
tion A.1 are explained in the three subsequent provisions,
only one of which (Section A.2) is relevant here.3 Allowing
for the adjustment of a customer’s distribution charge in
certain limited circumstances, Section A.2 provides, in perti-
nent part, as follows:
If the Transmission Provider [Ameren] makes signif-
icant modifications to Wholesale Direct Assignment
Facilities TTT or if there is a change in ownership or
reclassification of Wholesale Direct Assignment Fa-
cilities, then the 16.42% annual carrying charge
would be applied to the original installed cost adjust-
ed to take account of the change in the Wholesale
Direct Assignment Facilities.
Principles Document § A.2 (footnote omitted). Section A.2
also prohibits an adjustment for specific types of facility
modifications, namely: (1) any adjustment ‘‘to take account of
changes in the Wholesale Direct Assignment Facilities that
would properly be recorded as an operating and maintenance
charge under the Uniform System of Accounts’’ and (2) any
adjustment that would change the distribution charge by less
than the ‘‘deadband’’ of $1,000 per month. Id. Lastly,
Section A.2 requires Ameren to consult with affected custom-
ers before proceeding with ‘‘significant’’ facility modifica-
tions—i.e., those exceeding the deadband. Id.
Principles Document, Attachment A n.3. At oral argument, counsel
explained that Rolla purchased the aforementioned distribution
facilities from Ameren before the effective date of their agreement.
The purchase reduced the ‘‘original installed cost’’ of Ameren’s
Wholesale Direct Assignment Facilities and, as a result, similarly
reduced Rolla’s annual distribution charge.
3 Section A.3 allows for an adjustment to the distribution
charge ‘‘in the event [Ameren] recovers all or part of the costs
associated with the Wholesale Direct Assignment Facilities under
other contractual arrangement[s] with the Transmission Customer
(or its retail customers).’’ Principles Document § A.3. Section A.4
addresses the allocation of—and adjustments to—the ‘‘original cost’’
of ‘‘jointly-used’’ Wholesale Direct Assignment Facilities. Id. § A.4.
5
On January 1, 2001, Rolla began taking unbundled trans-
mission service from Ameren’s public utility affiliates. Short-
ly thereafter, on January 31, 2001, Ameren filed an unexecut-
ed SA with the Commission governing Rolla’s transmission
service, requesting an effective date of January 1, 2001.
After resolving some of the disputed issues with Rolla, Amer-
en filed a revised, unexecuted SA with the Commission on
August 24, 2001. The unexecuted SA included an annual
distribution charge of $446,664 rather than the adjusted
annual distribution charge of $288,811 set forth in Attachment
A. Ameren calculated a higher distribution charge because
its measure of the Wholesale Direct Assignment Facilities
serving Rolla—unlike the measure in Attachment A—includ-
ed the additional costs of (1) upgrading Ameren’s Phelps
substation in mid–1997 and (2) modifying that substation’s
control panel in December 2000. As a result of the increased
charge, Rolla filed a protest with the Commission on Septem-
ber 14, 2001, challenging Ameren’s calculation of its distribu-
tion charge.
The Commission issued its initial order on October 23,
2001, accepting the unexecuted SA for filing, but rejecting,
inter alia, Ameren’s calculation of Rolla’s distribution charge.
Order Accepting SA, 97 F.E.R.C. at 61,360. Although Amer-
en maintained that the charges set forth in Attachment A
were ‘‘merely illustrative,’’ the Commission concluded that the
plain language of the Principles Document indicated other-
wise: ‘‘ ‘[t]he resultant charges for Wholesale Direct Assign-
ment Facilities [are] set forth in Attachment A.’ ’’ Id. (quot-
ing Principles Document § A.1). The Commission further
concluded that, ‘‘even assuming that the Attachment A costs
were illustrative only,’’ the Principles Document ‘‘precluded
[Ameren] from collecting its proposed charge by operation of
the four-year moratorium agreed to by the parties.’’4 Id.
4 Section C of the Principles Document provides, in pertinent
part, that ‘‘[t]he above specified principles shall govern determina-
tion of Wholesale Direct Assignment Facilities Charges TTT for no
less than four years from the date of filing (‘Moratorium Period’),
after which time the methodology and procedures for determining
Wholesale Direct Assignment Facilities Charges TTT may be
changed TTT.’’ Principles Document § C.
6
Accordingly, the Commission ordered Ameren to revise the
unexecuted SA to provide for an annual distribution charge of
$288,811. See id.
On December 21, 2001, the Commission denied Ameren’s
request for rehearing. Order Denying Rehearing, 97
F.E.R.C. at 62,597. In that order, the Commission specifical-
ly rejected Ameren’s assertion that Section A.2 of the Princi-
ples Document ‘‘entitle[d] Ameren to recover pre-settlement
costs TTT that were known to exist at the time [of its
agreement with Rolla]’’ but not included in the agreement
itself. Id. The Commission interpreted Section A.2 to per-
mit adjustments to the distribution charge only ‘‘(1) where
Ameren ‘makes significant modifications to Wholesale Direct
Assignment Facilities[ ]’ or (2) ‘if there is a change of owner-
ship or reclassification of Wholesale Direct Assignment Facili-
ties.’ ’’ Id. (quoting Principles Document § A.2). Relying on
the words ‘‘makes’’ and ‘‘change,’’ the Commission reasoned
that ‘‘[b]oth conditions expressly contemplate actions or
events occurring after the date of the settlement.’’ Id. (em-
phasis in original). Because the modifications at issue were
made before the filing of the Principles Document,5 the
Commission concluded that Section A.2 did not authorize
Ameren to include the costs of the modifications in Rolla’s
distribution charge. Id. The Commission also rejected Am-
eren’s interpretation of the moratorium provision and instead
concluded that the Principles Document precluded Ameren
from seeking an adjustment of Rolla’s distribution charge not
otherwise sanctioned by Section A.2. Id.
II.
Ameren argues on review that the Commission erred in
concluding that the Principles Document unambiguously pro-
5 Although Ameren modified the Phelps substation’s control
panel in December 2000, that is, after the filing of the Principles
Document, recovery of these costs would raise Rolla’s distribution
charge by only $5,974 annually. Thus, by itself, the control panel
modification does not exceed the deadband. See Principles Docu-
ment § A.2 (distribution charge adjustment must exceed deadband
of $1000/month).
7
hibits Ameren from adjusting Rolla’s distribution charge as
set forth in the unexecuted SA. When read as a whole,
Ameren maintains, the Principles Document demonstrates
that the distribution charge for each customer is to be
determined by applying the 16.42% annual carrying charge to
the cost of the Wholesale Direct Assignment Facilities appli-
cable to each customer at the time that customer commences
unbundled service. Thus, under Ameren’s reading of the
Principles Document, the distribution charges set forth in
Attachment A ‘‘merely TTT illustrate the charges that would
result from application of the agreed upon settlement meth-
odology.’’ Br. for Pet’r at 27. Asserting that the Commis-
sion’s orders turn on an erroneous finding that the plain
language of the Principles Document prohibits the aforemen-
tioned interpretation, Ameren seeks a remand for further
proceedings.6
In reviewing the Commission’s interpretation of the Princi-
ples Document, we employ a variation of the now familiar
‘‘two-step’’ first performed by the United States Supreme
Court in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Cajun Elec. Power
Coop. v. FERC, 924 F.2d 1132, 1135–36 (D.C. Cir. 1991)
(Chevron deference applies to agency interpretation of
agency-approved contract); see also Appalachian Power Co.
v. FERC, 101 F.3d 1432, 1435 (D.C. Cir. 1996) (same). Ap-
plying Chevron in this context, we first consider de novo
whether the settlement agreement unambiguously addresses
the matter at issue. Cajun, 924 F.2d at 1136. If so, the
language of the agreement controls for we ‘‘must give effect
to the unambiguously expressed intent of’’ the parties. Chev-
ron, 467 U.S. at 843; see Cajun, 924 F.2d at 1136. If the
6 In the alternative, Ameren maintains that ‘‘the [c]ourt would
be fully justified in reversing the Commission’s decision for failure
to satisfy the test of reasoned decision-making.’’ Br. for Pet’r at 39.
Ameren is mistaken. As we explain in the text, remand to the
agency is the appropriate disposition ‘‘if an agency decision turns on
an erroneous assertion that the plain language of [a settlement
agreement] is unambiguous.’’ Cajun Elec. Power Coop. v. FERC,
924 F.2d 1132, 1136 (D.C. Cir. 1991).
8
settlement agreement is ambiguous, however, we then exam-
ine the Commission’s interpretation7 of that agreement ‘‘un-
der the deferential ‘reasonable’ standard.’’ Cajun, 924 F.2d
at 1136. If the Commission’s decision ‘‘turns on an erroneous
assertion that the plain language of the relevant wording is
unambiguous,’’ as Ameren alleges here, ‘‘we must remand’’
the matter to the Commission ‘‘to require the agency to
consider the question afresh in light of the ambiguity we see.’’
Id.
Thus, the only question before us is whether the Commis-
sion correctly concluded that the Principles Document unam-
biguously prohibits distribution charge adjustments based on
costs Ameren incurred before October 26, 1999—the date
Ameren filed the Principles Document. A contract is ambig-
uous if it is ‘‘ ‘reasonably susceptible of different constructions
or interpretations,’ ’’ Consol. Gas Transmission Corp. v.
FERC, 771 F.2d 1536, 1544 (D.C. Cir. 1985) (quoting Lee v.
Flintkote Co., 593 F.2d 1275, 1282 (D.C. Cir. 1979)), not
simply ‘‘because the parties later disagree on its meaning,’’
Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493,
497 (D.C. Cir.), cert. denied, 516 U.S. 863 (1995). We deter-
mine the plain meaning of a contract ‘‘from the language used
by the parties to express their agreement.’’ WMATA v.
Mergentime Corp., 626 F.2d 959, 961 (D.C. Cir. 1980). ‘‘In
performing this task, [we] should construe the contract as a
whole so as to give meaning to all of the [contract’s] express
terms.’’ Id.
In the Commission’s view, the plain language of the Princi-
ples Document unambiguously prohibits distribution charge
7 The Commission may consider extrinsic evidence only if the
settlement agreement is ambiguous. Appalachian Power, 101 F.3d
at 1435 (citing Consol. Gas Transmission Corp. v. FERC, 771 F.2d
1536, 1546 (D.C. Cir. 1985)). Because we conclude that the Com-
mission correctly found that the Principles Document unambigu-
ously prohibits Ameren from adjusting Rolla’s distribution charge
based on costs Ameren incurred before October 26, 1999, we need
not consider Ameren’s argument that the Commission improperly
ignored extrinsic evidence in reaching its decision.
9
adjustments based on costs Ameren incurred before the
October 26, 1999 filing date.8 See Order Denying Rehearing,
97 F.E.R.C. at 62,597. As the Commission emphasizes on
review, its interpretation relies primarily on Section A.2’s
combined use of the subjunctive voice and present tense.
Principles Document § A.2 (‘‘If the Transmission Provider
makes significant modifications TTT or if there is a change in
ownership or reclassification TTT, then the 16.42% annual
carrying charge would be applied to the original installed cost
adjusted to take account of the change in the Wholesale
Direct Assignment Facilities.’’) (emphasis added). The Com-
mission points out that the verb ‘‘make’’ means, inter alia,
‘‘bring[ing] about (a condition of things)’’ and that ‘‘such
language contemplates that only future modifications, occur-
ring after the filing date of the [Principles Document], will
trigger adjustments in [the] distribution charge.’’ Br. for
Resp’t at 13–14 (citing THE NEW SHORTER OXFORD DICTIONARY
1671 (1993)); see Order Denying Rehearing, 97 F.E.R.C. at
62,597 (‘‘[T]he word ‘makes,’ as it appears in [Section A.2],
does not implicate the modifications made to the Phelps
substation in [1997], which could only be described by the
addition of a past tense verb, i.e., ‘makes or made.’ ’’). Simi-
larly, asserting that the word ‘‘change’’ makes sense only ‘‘if
at the time of filing there was a status quo that could be
altered,’’ the Commission likewise contends that ‘‘the ‘change’
referred to would have to occur after the filing date.’’ Br. for
Resp’t at 14 (emphasis in original); see Order Denying
Rehearing, 97 F.E.R.C. at 62,597 (‘‘[T]he word ‘change’ can
only have meaning by reference to the status quo as it existed
at the time of the settlement.’’). Because Ameren’s upgrade
of the Phelps substation occurred in mid–1997, the Commis-
sion maintains that it correctly concluded that the Principles
8 Ameren claims that the Commission’s orders do not reflect
reasoned decision-making because the Order Denying Rehearing
‘‘supplied a new rationale’’ for the agency’s decision. Br. for Pet’r
at 43. This argument is without merit. The very purpose of
rehearing is to give the Commission the opportunity to review its
decision before facing judicial scrutiny.
10
Document unambiguously prohibits Ameren’s proposed ad-
justment of Rolla’s distribution charge.
We agree with the Commission that Section A.2’s language
necessarily contemplates a baseline date from which to mea-
sure distribution charge adjustments. But what is the base-
line date? The Commission argues, quite reasonably, that
the effective date of the agreement—October 26, 1999—is the
only possible baseline from which to measure the distribution
charge adjustments authorized by Section A.2. Ameren, on
the other hand, contends that the Principles Document may
just as reasonably be construed as including distribution
charge adjustments for any modifications made after the
issuance of the 1992 Allocation Study, i.e., the study used to
derive the ‘‘original installed cost of Wholesale Direct Assign-
ment Facilities’’ listed in Attachment A. We disagree with
Ameren.
As an initial matter, Ameren’s interpretation stands for a
peculiar proposition—that the parties entered into an agree-
ment that afforded ‘‘no certainty to [their] rights and obli-
gations even as to those facts and circumstances that were
known to exist at that time.’’ Order Denying Rehearing, 97
F.E.R.C. at 62,597 (emphasis in original). However, if the
parties had intended the distribution charges listed in Attach-
ment A to be merely ‘‘illustrative,’’ as Ameren contends, that
intent should be clear within the four corners of the Princi-
ples Document. But Ameren can point to no language re-
flecting such intent. Indeed, as Rolla emphasizes on review,
‘‘[n]o form of the word ‘illustrative’ appears anywhere in the
[Principles Document].’’ Br. for Intervenor at 5. To the
contrary, the Principles Document expressly states that ‘‘[t]he
resultant charges for Wholesale Direct Assignment Facilities
(absent adjustment as provided for below) are TTT set forth in
Attachment A.’’ Principles Document § A.1 (emphasis add-
ed).9
9 The phrase ‘‘absent adjustment as provided for below’’ plainly
refers to the adjustments expressly allowed by Sections A.2, A.3
and A.4 of the Principles Document. See Principles Document
§§ A.1–A.4; supra note 3 and accompanying text. Although the
11
More importantly, Ameren’s reading of Section A.2 strains
both the language and structure of the Principles Document.
To begin with, pre-settlement modifications—including those
made after the 1992 Allocation Study but before the October
26, 1999 filing date—are modifications that Ameren ‘‘has
made’’ rather than those Ameren ‘‘makes’’ subsequent to the
effective date of the agreement. See Principles Document
§ A.2. Section A.4 casts similar doubt on the reasonableness
of Ameren’s reading of Section A.2.10 Addressing ‘‘jointly-
used’’ Wholesale Direct Assignment Facilities, Section A.4
provides that the ‘‘original cost’’ of such facilities ‘‘shall be
allocated using [Ameren’s] 1992 Allocation Study TTT the
results of which are reflected in Attachment A.’’ Principles
Document § A.4. In addition, Section A.4 expressly autho-
rizes certain pre-settlement adjustments:
This allocation of jointly-used facilities shall be
changed only if a party can show that material
Commission omitted the phrase from its initial decision, see Order
Accepting SA, 97 F.E.R.C. at 61,360, the Order Denying Rehearing
explained that, under Section A.2, Ameren may adjust a customer’s
distribution charge in ‘‘two limited circumstances,’’ Order Denying
Rehearing, 97 F.E.R.C. at 62,597. Thus, contrary to Ameren’s
contention, the Commission did not interpret the Principles Docu-
ment as precluding any and all adjustments from the distribution
charges set forth in Attachment A.
10 Ameren mistakenly claims that the Commission’s reliance on
Section A.4 constitutes an ‘‘impermissible post hoc rationalization’’
because the agency did not rely on this provision in either of the
orders under review. Reply Br. at 3. Although ‘‘post hoc rationali-
zations cannot support an affirmance of an agency decision based on
an otherwise invalid rationale,’’ the Commission does not ask ‘‘us to
substitute a post hoc, and therefore unacceptable, rationale for an
otherwise invalid rationale rejected by the court on review.’’ Amer-
ica’s Cmty. Bankers v. FDIC, 200 F.3d 822, 835 (D.C. Cir. 2000).
On the contrary, the Commission offers on review ‘‘a persuasive
interpretation’’ of Section A.4 that is ‘‘consistent’’ with its overall
reading of the Principles Document. Id. Accordingly, ‘‘[t]here is
no difficulty in our reviewing the TTT language [of the Principles
Document] de novo.’’ Id. at 835–36.
12
change occurred after 12/31/97 in the relative usage
of such Wholesale Direct Assignment Facilities be-
tween and among retail and wholesale customers.
Id. The absence of a comparable provision in Section A.2
strongly suggests that the parties did not intend for pre-
settlement events to trigger similar adjustments under Sec-
tion A.2. See Halverson v. Slater, 129 F.3d 180, 185 (D.C.
Cir. 1997) (‘‘the mention of one thing implies the exclusion of
another thing’’) (internal quotations omitted). Indeed, the
express incorporation of pre-settlement adjustments within
Attachment A itself—including an adjustment to Rolla’s dis-
tribution charge—further undermines Ameren’s interpreta-
tion for it indicates that the parties were well aware of how to
adjust distribution charges for changes occurring before Oc-
tober 26, 1999. See supra note 2.
We find Ameren’s arguments to the contrary unpersuasive.
To support its claim that the distribution charges listed in
Attachment A are merely illustrative, Ameren relies chiefly
upon the use of the word ‘‘methodology’’ in the cover letter
that accompanied its October 26, 1999 filing.11 Yet the cover
letter’s use of the word ‘‘methodology’’ is entirely consistent
with Commission’s interpretation of the Principles Docu-
ment—i.e., the Principles Document establishes a methodolo-
gy for adjusting the distribution charges listed in Attachment
A to take account of changes occurring after October 26, 1999.
See Order Denying Rehearing, 97 F.E.R.C. at 62,597. More-
over, the cover letter lends no support to Ameren’s claim that
the 1992 Allocation Study serves as the baseline from which
to measure distribution charge adjustments.
Ameren’s reliance on the language of Section A.1 is similar-
ly misplaced. As earlier noted, Section A.1 provides that
each customer’s distribution charge ‘‘shall be calculated by
11 While we need not decide the question here, we are doubtful
that the cover letter on which Ameren relies is even relevant to our
inquiry into the Principles Document’s plain meaning. See Mid–
Continent Area Power Pool, 97 F.E.R.C. ¶ 61,038, 61,184 (2001)
(‘‘submittal’’ does not include ‘‘cover letter’’), remanded on other
grounds, 305 F.3d 780 (8th Cir. 2002).
13
applying an annual carrying charge of 16.42% to the original
installed cost of Wholesale Direct Assignment Facilities appli-
cable to such customer.’’ Principles Document § A.1. Read-
ing the phrase ‘‘shall be calculated’’ in a predictive sense,
Ameren argues that the Principles Document simply estab-
lishes the methodology for calculating a customer’s distribu-
tion charge once that customer begins to receive unbundled
transmission service.12 Ameren’s interpretation ignores, how-
ever, the phrase that immediately follows: ‘‘as shown on the
list attached to this Agreement as Attachment A.’’ Id. Fur-
ther, Ameren’s argument suffers from a more critical error of
omission: it fails to account for the final—and crucial—
sentence of Section A.1: ‘‘The resultant charges for Whole-
sale Direct Assignment Facilities (absent adjustment as pro-
vided for below) are also set forth in Attachment A.’’ Id.
(emphasis added).13
III.
For the foregoing reasons, we conclude that the Principles
Document unambiguously prohibits Ameren from adjusting
Rolla’s distribution charge in order to take into account costs
that it incurred before October 26, 1999. Ameren’s petition
for review is therefore denied.
So ordered.
12 We find Ameren’s ‘‘predictive’’ reading of the phrase ‘‘shall
be calculated’’ somewhat strained. As Rolla observes on review,
‘‘[t]he word ‘shall,’ when utilized in laws, directives, and the like,
means ‘must’ or ‘is or are obligated to.’ ’’ Bell Atl.-New Jersey v.
Tate, 962 F. Supp. 608, 616 n.6 (D.N.J. 1997) (quoting RANDOM
HOUSE WEBSTER’S COLLEGE DICTIONARY 1230 (1991)). Here, the
phrase ‘‘shall be calculated’’ simply reflects Ameren’s obligation to
calculate each customer’s distribution charge using the agreed upon
methodology.
13 Because we agree with the Commission’s conclusion that
Sections A.1 and A.2 prohibit Ameren from increasing Rolla’s
distribution charge for modifications made before October 26, 1999,
we need not address Ameren’s challenge to the Commission’s
interpretation of the moratorium provision in Section C.