United States Court of Appeals, Eleventh Circuit.
No. 94-2320.
FLORIDA MUNICIPAL POWER AGENCY, Plaintiff-Appellant, Cross-
Appellee,
v.
FLORIDA POWER & LIGHT COMPANY, Defendant-Appellee, Cross-
Appellant.
Sept. 19, 1995.
Appeals from the United States District Court for the Middle
District of Florida. (No. 92-35-CIV-ORL-22), Anne C. Conway, Judge.
Before COX, Circuit Judge, RONEY and WOOD*, Senior Circuit Judges.
RONEY, Senior Circuit Judge:
The primary issue in this case is whether the "filed rate"
doctrine precludes Florida Municipal Power Agency's claim against
Florida Power & Light for refusal to sell network electric
transmission services. The filed rate doctrine provides that where
a regulated company has a rate for service on file with the
applicable regulatory agency, the filed rate is the only rate that
may be charged. Since there is a genuine issue as to whether the
filed rate covers the network service that plaintiff sought to buy,
we vacate and remand the district court's summary judgment for
Florida Power & Light.
The possible difference between what plaintiff sought to buy
and the filed rate for what defendant had to sell is pointed up by
a review of the facts. Plaintiff Florida Municipal Power Agency
(Agency) is a municipally owned agency established by law to sell
economic and reliable power to a twenty-six member group of Florida
*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
cities and municipal power authorities. In the early 1980s,
Florida Power & Light (FPL) entered into settlement agreements with
the Department of Justice and the Nuclear Regulatory Commission and
a number of Florida cities, some of whom are members of the Agency.
The agreements gave the Agency members the right to purchase
transmission service and wholesale power from FPL. Under these
agreements, FPL sold "point-to-point" transmission services to the
Agency wherein FPL assessed a separate charge for transmission
between each generation point and a particular city. If the Agency
wanted to supply the city from another power source, it had to pay
a separate transmission charge. The rates were filed with the
Federal Energy Regulatory Commission (FERC), which has the
exclusive authority under the Federal Power Act to determine power
allocations and the reasonableness of wholesale power rates.
In a three-count complaint against FPL alleging breach of
contract and federal and state antitrust claims for damages and
injunctive relief, the Agency asserted that FPL refused to sell it
network transmission services from FPL's network. The Agency first
requested access to the network in 1989 to allow its members to
integrate resources in the same way as does FPL. Network
transmission is more economical because a utility can continually
change power sources throughout the day to respond to changing
demand levels. The Agency contended that without the network
service it could not establish an integrated power project and had
to rely on more expensive sources of power. In response to FPL's
motion for summary judgment, the Agency asserted that the rate
schedules currently on file with the Commission "do not provide for
transmission connecting each [integrated] resource to each
[integrated] member city, at any price." The Agency's Mem. Opp'n
FPL's Mot.Summ.J. at 16.
Without addressing the merits of either the contract or
antitrust claims, the district court granted FPL's motion for
summary judgment on the damage claim, finding the claim was barred
by the "filed rate" doctrine. The court denied the Agency's motion
for reconsideration. The district court also concluded that a
proposed FERC order requiring FPL to provide network transmission
service to the Agency mooted its claims for injunctive relief.
Both decisions were appealed.
The plaintiff Agency argues that its damage claim was not
barred by the filed rate doctrine because the doctrine does not
apply when no rate is filed. The Agency contends that while there
was a filed rate for point-to-point service, FPL refused to sell it
network transmission, a service the Agency insists is distinct from
point-to-point transmission. There was no filed network rate.
FPL asserts that network service is nothing more than
different pricing of FPL's existing transmission. It claims the
Agency's request for network service was actually a request to
modify or replace point-to-point rates on file with the FERC. Such
modification, FPL contends, is clearly precluded by the filed rate
doctrine enunciated in a long line of Supreme Court cases.
The characterization of the plaintiff's claim is therefore
critical to whether the filed rate doctrine will apply. The
parties do not dispute that if there was a filed rate covering
network service, the damage claim would be precluded by the filed
rate doctrine. This doctrine was announced in Keogh v. Chicago &
Northwestern Railway, 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183
(1922), where the Supreme Court first held that once a carrier's
rate had been submitted to and approved by the responsible
regulatory agency, in that case the Interstate Commerce Commission
(ICC), a private shipper could not successfully recover antitrust
damages on a claim that the rate was the product of an antitrust
violation. The Court reasoned that the ICC's approval had, in
effect, established the lawfulness of the shipper's rates. 260
U.S. at 162-63, 43 S.Ct. at 49. The Court has reaffirmed theKeogh
holding in later cases also applying the filed rate doctrine to
rates filed with the Federal Power Commission (FPC) and its
successor, FERC. E.g., Square D Co. v. Niagara Frontier Tariff
Bureau, Inc., 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986)
(antitrust damage claim barred; rates filed with ICC); Arkansas
Louisiana Gas Co. v. Hall, 453 U.S. 571, 101 S.Ct. 2925, 69 L.Ed.2d
856 (1981) (breach of contract damage claim barred; rates filed
with FPC); Montana-Dakota Utilities Co. v. Northwestern Public
Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (fraud
damage claim barred; rates filed with FPC).
In decisions subsequent to Keogh, however, the Court has
emphasized the limited scope of the filed rate doctrine to preclude
damage claims only where there are validly filed rates. In
Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 216,
86 S.Ct. 781, 783, 15 L.Ed.2d 709 (1966), the Court held that a
shipper's implementation of rate-making agreements which were not
approved by the Federal Maritime Commission was subject to the
antitrust laws. In discussing the Carnation case, the Court later
noted: "The specific Keogh holding ... was not even implicated in
Carnation ..., because the ratemaking agreements challenged in that
case had not been approved by, or filed with [the Commission]."
Square D, 476 U.S. at 422 n. 29, 106 S.Ct. at 1930 n. 29. In its
most recent decision discussing the filed rate doctrine, the Court
held that a carrier could not rely on that doctrine when, having
filed a tariff lacking an essential element, "in effect it had no
rates on file...." Security Services v. K Mart Corp., --- U.S. ---
-, ----, 114 S.Ct. 1702, 1708, 128 L.Ed.2d 433 (1994). The Court
also has noted that "exemptions from the antitrust laws are
strictly construed and strongly disfavored." Square D, 476 U.S. at
421, 106 S.Ct. at 1929. It reiterated that the filed rate doctrine
does not bar criminal or injunctive antitrust actions. 476 U.S. at
421, 106 S.Ct. at 1929.
If the gravamen of the Agency's claim that the two services
are distinct and there is no filed network rate is accurate, then
it is clear the doctrine would not confer immunity. The district
court improperly concluded in its order on reconsideration that
even if network and point-to-point transmission are entirely
different services or products, the filed rate doctrine would bar
an antitrust claim. There needs to be a factual determination of
whether network transmission is such a different product from
point-to-point transmission that reasonable ratemaking would
require the filing of separate network transmission rates.
The United States has filed an amicus brief in this case
asserting concern over the district court's failure to determine if
the network transmission service sought by the plaintiff is
different from the point-to-point service for which FPL has filed
rates. In that brief the United States stated, as we do also, that
we "take[ ] no position as to whether the "network' service FMPA
[the Agency] sought was or was not "an entirely different service'
from the point-to-point service available at filed rates." The
United States suggested, as we do here, "[d]epending on the
circumstances, the court also could have considered a primary
jurisdiction referral to FERC in connection with this issue. Brief
of the United States as Amicus Curiae at 18-19 n. 11. See
generally Reiter v. Cooper, --- U.S. ----, ----, 113 S.Ct. 1213,
1220, 122 L.Ed.2d 604 (1993); Ricci v. Chicago Mercantile
Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973);
United States v. Western Pacific Railroad, 352 U.S. 59, 77 S.Ct.
161, 1 L.Ed.2d 126 (1956); Wagner & Brown v. ANR Pipeline Co., 837
F.2d 199 (5th Cir.1988).
If on remand the district court concludes that the services
are distinct and FPL is not immune from antitrust liability, it
may, for the limited purpose of calculating damages, estimate the
rate that would have been in effect but for the violation without
infringing on the FERC's jurisdiction. Estimates are permissible
and unavoidable in antitrust damage computations. J. Truett Payne
Co. v. Chrysler Motors Corp., 451 U.S. 557, 565-66, 101 S.Ct. 1923,
1929, 68 L.Ed.2d 442 (1981); Zenith Radio Corp. v. Hazeltine
Research, 395 U.S. 100, 123-24, 89 S.Ct. 1562, 1577, 23 L.Ed.2d 129
(1969); Graphic Products Distributors v. Itek Corp., 717 F.2d
1560, 1579 (11th Cir.1983).
We vacate the district court's denial of the Agency's claim
for injunctive relief, which will have to be decided by the outcome
of proceedings on remand.
We deny the Agency's motion to take judicial notice of
post-appeal testimony, which the district court properly can
address on remand.
VACATED and REMANDED.