concurring in part:
I am substantially in agreement with the majority opinion, especially with respect to the principal issue, the construction of the municipal preference. I write separately, however, to make clear my analysis of the case.
Judge Mikva’s discussion of res judicata and collateral estoppel is a lucid and scholarly exposition of a confusing and difficult area of law. However, I find myself unable to accept the predicate for its application to this case — that the Eleventh Circuit “did not uphold the Commission’s interpretation because it was one reasonable interpretation among many. Rather, the court applied a much stricter standard of review to the agency decision and held that the other interpretation being urged was clearly wrong.” Majority opinion at 372.
As I understand the Bountiful litigation, the Commission had interpreted the municipal preference statute, and the private license holders were challenging that interpretation. The Eleventh Circuit applied a deferential standard of review, noting that it should uphold the agency’s construction “unless there [were] compelling reasons indicating such construction is wrong.” Alabama Power Co. v. FERC, 685 F.2d 1311, 1316 (11th Cir.1982) (citing Florida Power & Light Co. v. FERC, 660 F.2d 668 (5th Cir.1982)); see also id. at 1318, citing CBS, Inc. v. FCC, 453 U.S. 367, 382, 101 S.Ct. *3332813, 2823, 69 L.Ed.2d 706 (1982). The court found that FERC’s initial interpretation was reasonable. Therefore, any challenge to the reasonableness of that interpretation by the parties to Bountiful would certainly be precluded. But ClarkCowlitz is not challenging the reasonableness of that initial interpretation, it is challenging the Commission’s revised interpretation. It may be difficult to imagine how two directly opposite interpretations can both be reasonable, but saying that the Commission’s new interpretation is unreasonable is different from saying that the Commission is precluded from asserting it.
The posture of this ease is admittedly somewhat unusual. Intervention by virtually all the affected parties has converted a proceeding that is adjudicatory in form into one that is effectively a notice and comment rulemaking. We should be extremely reluctant to apply collateral estoppel to this hybrid procedure in a way that enables an agency to bind the policy decisions of future generations.
In any event, my differences with the majority on the question of preclusion only make it that much easier for me to reach the merits of the municipal preference issue, and on this point I am in unqualified agreement with the majority opinion. There is no doubt that Congress intended the preference to apply on relicensing and that the Commission’s revised interpretation of the statute is not a reasonable one.
With respect to “economic impacts,” I would allow the Commission greater latitude than does the majority. I think the “public interest” easily comprehends consumer cost inequities. Nor do I believe this analysis necessarily undercuts the municipal preference, which when properly applied is merely a tiebreaker. I share the majority’s concern about the potential for abuse, but that only means that we must be especially careful to scrutinize the Commission’s application of the test, not that we hold it impermissible as a matter of law.
In this case, for example, the Commission’s decision was so incompletely reasoned and explained as to be arbitrary and capricious. In particular, the Commission did not justify its failure to examine the economic impact on the entire region, as the Administrative Law Judge had done, rather than merely the customers of the competing applicants. I do not conclude that the Commission must adopt the ALJ’s approach, but at least it must present some evidence that it considered this seemingly plausible alternative and rejected it for legitimate reasons. I would remand the case for that consideration.