Southwestern Electric Power Company v. Federal Energy Regulatory Commission, Oklahoma Municipal Power Authority, Intervenor

MIKVA, Circuit Judge,

dissenting:

In Florida Power & Light Co. v. FERC, this court explained that “[t]he Federal Power Act does not define initial or changed rates, and it is therefore properly the Commission’s task, using its technical expertise, to draw the line between them. The courts must defer to the Commission’s judgment unless the line it draws cannot be rationally reconciled with the terms of the Act.” 617 F.2d 809, 814 (D.C.Cir.1980) (citing Otter Tail Power Co. v. FERC, 583 F.2d 399, 404 (8th Cir.1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979)). The Commission “may alter that line so long as it proceeds on a reasoned basis that is not clearly outside the statutory framework.” Id. at 818. Because I believe FERC’s classification of SWEPCO’s filing as a changed rate was a reasoned decision that comports with the Federal Power Act, I dissent.

The majority declines to review FERC’s SWEPCO orders because it cannot discern the line the Commission has redrawn. But the Commission has clearly stated its criterion for determining what constitutes a “changed” rate filing:

[Wjhere transmission service is provided over the same lines for the same basic purpose, viz., to transmit energy from shares of a unit commonly owned, the addition of new transmission customers shall be considered as changes to the previously filed transmission rates for such services.

Southwestern Electric Power Co., 34 F.E.R.C. (CCH) ¶ 61,160 at 61,272 (1986), J.A. at 112; see also id. (explaining that a filing would present “initial” rates, i.e. would be “incontrovertibly new,” in FERC’s view if it “involved a rate for genuinely new sellers of energy to sell at wholesale to genuinely new customers”).

The majority further contends that FERC failed to address SWEPCO’s allegations that the service it provided under the filing “cannot reasonably be equated with the service provided to other customers,” and that its filing therefore constitutes an initial rate (even under the criterion articulated by the Commission). Maj. Op. at 293. The Commission, however, based its finding that “the same formula (with some minor variations) is being applied in each case to similar transmission service” on SWEPCO’s own representations in its filing. Southwestern Electric Power Co., 31 F.E.R.C. (CCH) ¶ 61,389 at 61,874-75 (1985), J.A. at 77; see SWEPCO Filing, J.A. at 5'(“SWEPCO currently provides wholesale electric service to four customers un*295der a similar formula.”). Moreover, as the Commission explained, the “fact that the terms vary somewhat, and the fact that the charges vary somewhat, are not determinative of whether it is a changed rate____”34 F.E.R.C. ¶ 61,160 at 61,272, J.A. at 112.

With its orders, the Commission has not sought to extend its suspension and refund powers to “uncontrovertibly new” rate schedules in contravention of Middle South Energy, Inc. v. FERC, 747 F.2d 763, 771 (D.C.Cir.1984). Rather, it seeks to exercise its “broad ... power to characterize rates that are arguably initial as changed,” id. Although the characterization effected here broadens the definition of changed rates and diminishes the effect of this court’s decision in Middle South Energy, the Commission’s action is permissible. I therefore respectfully dissent.