Respondent Ohio Power Co. is subject to the overlapping
regulatory jurisdiction of the Securities and Exchange Commission
(SEC) under the Public Utility Holding Company Act (PUHCA) and the
Federal Energy Regulatory Commission (FERC) under the Federal Power
Act (FPA). In a series of orders authorizing Ohio Power to
establish and capitalize an affiliate to secure and develop a
reliable source of coal, the SEC specified that the price Ohio
Power paid for such coal could be no greater than (and, in one
order, equal to) the affiliate's actual costs. Subsequently, FERC
declared coal charges complying with this specification
unreasonable, and thus unrecoverable in Ohio Power's rates to its
wholesale customers, including petitioner municipalities, rejecting
Ohio Power's argument that the SEC, by the above-mentioned orders,
had "approved" the affiliate's charges, and that § 318 of the FPA
ousts FERC of jurisdiction. The Court of Appeals reversed, holding
FERC's disallowance of the charges to be precluded by § 318, which
is captioned "Conflict of jurisdiction," and which provides
that
"[i]f, with respect to the issue, sale, or guaranty of a,
security, or assumption of obligation or liability in respect of a
security, the method of keeping accounts, the filing of reports, or
the acquisition or disposition of any security, capital assets,
facilities,
or any other subject matter, any person is
subject both to a requirement of [PUHCA] and to a requirement of
[the FPA], the [PUHCA] requirement . . . shall apply . . . , and
such person shall not be subject to the [FPA] requirement . . .
with respect to the same subject matter. . . ."
(Emphasis added.)
Held:
1. Section 318 has no application to this case. The phrase "or
any other subject matter" does not, as the lower court assumed,
parallel the other listed subjects "with respect to [which]"
duplicative agency requirements will trigger the preemption rule.
Rather, it is part of the phrase that reads "the acquisition or
disposition of any security, capital assets, facilities, or any
other subject matter." Besides being more faithful to the precise
words of the text, this reading allows § 318 to take on a shape
that gives meaning to what otherwise seems a random listing of
specific subject matters (with "any other subject matter" tagged on
at the end). The section addresses conflicts of jurisdiction within
four
Page 498 U. S. 74
areas of plainly parallel authority granted both to the SEC and
FERC by particular sets of PUHCA and FPA sections. This is
confirmed by expert commentary and by the practice of FERC and its
predecessor, which have never decided a § 318 issue except in
connection with orders promulgated under one of the four enumerated
categories. Thus, § 318 applies only if the "same subject matter"
as to which the duplicative requirements exist is one of those
specifically enumerated, and not some different, more general
"other subject matter," as the lower court believed. Even assuming
that FERC's rate order affecting the sale of electric power
qualifies as a requirement "with respect to . . . the . . .
disposition of . . . any other subject matter," it is still a
requirement with respect to a different subject matter from Ohio
Power's acquisition of its affiliate, which was the subject of the
SEC orders. Pp.
498 U. S.
77-85.
2. This Court expresses no view on, but leaves to the lower
court to resolve, the arguments that FERC's decision violates its
own regulation providing that the price of fuel purchased from an
affiliate shall be deemed to be reasonable where subject to the
jurisdiction of a regulatory body, and that the FERC-prescribed
rate is not "just and reasonable" because it "traps" costs which
the SEC has implicitly approved. P.
498 U. S.
85.
279 U.S.App.D.C. 327, 880 F.2d 1400 (1989), reversed and
remanded.
SCALIA, J., delivered the opinion of the Court, in which all
other Members joined, except SOUTER, J., who took no part in the
consideration or decision of the case. STEVENS, J., filed a
concurring opinion, in which MARSHALL, J., joined, p.
498 U. S.
86.
Page 498 U. S. 75
Justice SCALIA delivered the opinion of the Court.
This case concerns the interpretation of § 318 of the Federal
Power Act,
as added, 49 Stat. 863, 16 U.S.C. § 825q,
entitled "Conflict of jurisdiction," which governs certain
overlapping responsibilities of the Federal Energy Regulatory
Commission (FERC) and the Securities and Exchange Commission (SEC)
in the regulation of power companies under the Public Utility Act
of 1935, 49 Stat. 803.
I
The Public Utility Act subjects some companies that transmit and
distribute electric power to overlapping regulatory jurisdiction of
both the SEC and of FERC, successor to the Federal Power Commission
(FPC). Title I, known as the Public Utility Holding Company Act
(PUHCA), 49 Stat. 803, gives the SEC jurisdiction over certain
transactions among registered public utility holding companies and
their subsidiaries and affiliates. Title II, the Federal Power Act
(FPA), 49 Stat. 838, gives FERC jurisdiction over the transmission
and sale at wholesale of electric power in interstate commerce.
FERC-regulated electric power companies that are subsidiaries or
affiliates of registered public utility holding companies are
therefore subject to SEC regulation as well. Respondent Ohio Power,
part of the American Electric Power system (AEP), is one such
company; petitioners are 15 small Ohio villages and cities that are
AEP's wholesale customers.
The dispute in this case begins in a series of orders issued by
the SEC in the 1970's, authorizing Ohio Power to establish
Page 498 U. S. 76
and capitalize an affiliate, Southern Ohio Coal Company (SOCCO),
to secure and develop a reliable source of coal for the whole AEP
system. The first order, in 1971, approved the sale and purchase of
SOCCO's stock, and in the course of outlining the conditions of
that approval, stated that SOCCO's charges for coal would be "based
on" actual costs.
Ohio Power Co., SEC Holding Company Act
Release (HCAR) No. 17383 (Dec. 2, 1971). In 1978, the SEC
authorized further investment by Ohio Power, and this time its
order indicated that the price of coal "will not exceed the cost
thereof to the seller."
Ohio Power Co., HCAR No. 20515
(Apr. 24, 1978), 14 S.E.C. Docket 928, 929. In 1979, in the course
of another financing approval order, the SEC noted that Ohio Power
would pay SOCCO less than the actual cost of coal if Ohio Power's
after-tax capital costs exceeded a certain level. Southern Ohio
Coal Co., HCAR No. 21008 (Apr. 17, 1979). The final order in 1980,
approving further SOCCO financing, indicated that "[t]he price at
which SOC[C]O's coal will be sold to AEP system companies will not
exceed the cost thereof to the seller."
Southern Ohio Coal
Co., HCAR No. 21537 (Apr. 25, 1980).
In 1982, Ohio Power filed rate increases for its wholesale
service. FERC initiated a rate proceeding under §§ 205 and 206 of
the FPA, 16 U.S.C. §§ 824d, 824e, and quickly settled all issues
save the reasonableness of Ohio Power's SOCCO coal costs. Pursuant
to § 206 of the FPA, FERC disallowed that portion of Ohio Power's
coal costs that did not satisfy FERC's "comparable market" test.
Under this test, utilities that purchase coal from affiliates may
recover only the price that they would have incurred had they
purchased coal under a comparable coal supply contract with a
non-affiliated supplier. In Ohio Power's case, FERC found that Ohio
Power had paid approximately 50% more than that market price in
1980, approximately 94% more in 1981, and between 24% and 33% more
during the period 1982 through 1986. Accordingly, FERC ordered Ohio
Power to establish rates
Page 498 U. S. 77
calculated to recover from its customers no more than the
comparable market price for coal, and to refund prior overcharges.
The agency rejected Ohio Power's argument that the SEC, by the
above-mentioned orders, had "approved" the coal charges by SOCCO,
and that § 318 of the FPA ousts FERC of jurisdiction to regulate
the same "subject matter" by declaring those charges unreasonable,
and thus unrecoverable in Ohio Power's wholesale rates.
Ohio
Power Co., 39 FERC � 61,098 (1987).
The United States Court of Appeals for the District of Columbia
Circuit reversed, holding FERC's disallowance of the charges to be
precluded by § 318.
Ohio Power Co. v. FERC, 279
U.S.App.D.C. 327, 880 F.2d 1400 (1989). We granted certiori. 494
U.S. (1990).
II
As decided by the Court of Appeals, and as argued here, two
questions were presented in this case: (1) whether § 318 bars all
FERC regulation of a subject matter regulated by the SEC, or only
such regulation as actually imposes a conflicting requirement; and
(2) if an actual conflict is prerequisite, whether it exists here.
In our view, however, there is another question antecedent to these
and ultimately dispositive of the present dispute: whether the SEC
and FERC orders before us impose requirements with respect to a
subject matter that is within the scope of § 318. We believe they
do not.
Section 318 provides as follows:
"Conflict of jurisdiction."
"If, with respect to the issue, sale, or guaranty of a security,
or assumption of obligation or liability in respect of a security,
the method of keeping accounts, the filing of reports, or the
acquisition or disposition of any security, capital assets,
facilities,
or any other subject matter, any person is
subject both to a requirement of the Public Utility Holding Company
Act of 1935 or of a rule,
Page 498 U. S. 78
regulation, or order thereunder and to a requirement of this
chapter or of a rule, regulation, or order thereunder, the
requirement of the Public Utility Holding Company Act of 1935 shall
apply to such person, and such person shall not be subject to the
requirement of this chapter, or of any rule, regulation, or order
thereunder, with respect to the same subject matter, unless the
Securities and Exchange Commission has exempted such person from
such requirement of the Public Utility Holding Company Act of 1935,
in which case the requirements of this chapter shall apply to such
person."
(Emphasis added.) Crucial to the outcome of the present case is
the lengthy conditional clause that begins this section, setting
forth a list of subjects "with respect to [which]" duplicative
requirements will trigger the preemption rule. More specifically,
the key to the outcome is the phrase "or any other subject matter,"
which we have italicized in the above passage. The Court of Appeals
appears to have assumed that it parallels the other phrases setting
forth various objects of the preposition "with respect to." We do
not think it reasonably bears that interpretation.
To begin with, that interpretation renders the preceding
enumeration of specific subjects entirely superfluous -- in effect
adding to that detailed list "or anything else." Because the other
four categories of enumeration are so disparate, the canon of
ejusdem generis cannot be invoked to prevent the phrase
"or any other subject matter" from swallowing what precedes it,
leaving a statute that might as well have read "If, with respect to
any subject matter . . . " Such an interpretation should not be
adopted unless the language renders it unavoidable. Here, however,
the text not only does not compel that result, but positively
militates against it.
As the Court of Appeals read § 318, the conditional clause lists
five separate areas of duplicative requirements. Bracketed numbers
inserted into the text would appear as follows:
Page 498 U. S. 79
"If, with respect to [1] the issue, sale, or guaranty of a
security, or assumption of obligation or liability in respect of a
security, [2] the method of keeping accounts, [3] the filing of
reports, or [4] the acquisition or disposition of any security,
capital assets, facilities, or [5] any other subject matter . .
."
This reading, however, creates two problems of enumeration:
first it renders the "or" that introduces the fourth category
duplicative ("If, with respect to [1], [2], [3],
or [4],
or [5]"), and second, it produces the peculiar omission of
an "or" before the last item listed within the text of the fourth
category ("the acquisition or disposition of any security, capital
assets, facilities"). In casual conversation, perhaps, such
absent-minded duplication and omission are possible, but Congress
is not presumed to draft its laws that way. The attribution of such
imprecision is readily avoided by placing the phrase "or any other
subject matter" within the fourth enumeration clause, reading that
to embrace "[4] the acquisition or disposition of any security,
capital assets, facilities, or any other subject matter." It is
inelegant, perhaps, to refer to "the acquisition or disposition of
. . . [a] subject matter," but that inelegance must be preferred to
a reading that introduces both redundancy and omission, and that
renders the section's careful enumeration of subjects
superfluous.
Moreover, and most importantly, when § 318 is read in this
fashion, it takes on a shape that gives meaning to what otherwise
seems a random listing of specific subject matters (with "any other
subject matter" tagged on at the end). So interpreted, it addresses
(as its caption promises) the "Conflict of jurisdiction" within
four areas of plainly parallel authority granted both to the SEC,
under PUHCA, and to the FPC (FERC), under the FPA. The first
category, "the issue, sale, or guaranty of a security, or
assumption of obligation or liability in respect of a security,"
refers to § 204 of the FPA, 16 U.S.C. § 824c, which requires all
such transactions to be approved by FERC order, and to § 6 of
PUHCA, 15 U.S.C.
Page 498 U. S. 80
§ 79f, which in certain cases requires similar approval by the
SEC; the second, "the method of keeping accounts," refers to § 301,
16 U.S.C. § 825, which authorizes FERC to prescribe accounts and
records, and to § 15, 15 U.S.C. § 790, which similarly authorizes
the SEC; the third, "the filing of reports," refers to § 304, 16
U.S.C. § 825c, which authorizes FERC to require "periodic or
special reports," and § 14, 15 U.S.C. § 79n, which similarly
empowers the SEC; and the fourth, "the acquisition or disposition
of any security, capital assets, facilities, or any other subject
matter" refers to § 203, 16 U.S.C. § 824b, which requires all
purchases of securities of other public utilities, and all sales of
facilities worth more than $50,000, to be approved by FERC order,
and to § 9, 15 U.S.C. § 79i, which requires SEC approval of
acquisitions of "securities and utility assets and other
interests." The language of § 318 does not track precisely the
language of any of these other sections, but the PUHCA and FPA
sections making up each of the four sets are not themselves
precisely parallel, so that some alternate formulation to bridge
the gap would be expected.
Our reading is confirmed by long-time understanding and
practice. An expert commentary upon the specific topic of
overlapping SEC and FPC jurisdiction, written about 10 years after
passage of the Public Utilities Act, assumed as we have that § 318
implicated only the four FPC sections that we have identified.
See Welch, Functions of the Federal Power Commission in
Relation to the Securities and Exchange Commission, 14
Geo.Wash.L.Rev. 81, 88 (1945). And as far as we have been able to
determine, in 50 years of administering the Federal Power Act, FERC
and its predecessor, the FPC, have never decided an issue under §
318 except in connection with orders promulgated under those four
sections. [
Footnote 1] Never
before this
Page 498 U. S. 81
case has § 318 been used as a general conflicts provision,
policing the entire regulatory border between the two agencies.
[
Footnote 2]
Page 498 U. S. 82
It is not necessarily true that § 318 gives the SEC precedence
only when the specific sections that we have referred to are the
jurisdictional basis for both the FERC and the
Page 498 U. S. 83
SEC action -- as they are not, of course, here. But the text of
the section, as we have explicated it above, does require that the
"same subject matter" as to which the duplicative requirements
Page 498 U. S. 84
exist be one of those specifically enumerated, and not some
different, more general "other subject matter" -- such as what the
Court of Appeals relied upon, "[t]he price term of sales contracts
between associated companies," 279 U.S.App.D.C. at 333, 880 F.2d at
1406. In the context of the present case, the only enumerated
subject matter conceivably pertinent is contained within what we
have referred to as the fourth category. To prevail under § 318,
respondent would have to establish that it has been subjected both
to a SEC requirement under PUHCA and to a FERC requirement under
the FPA, "with respect to . . . the acquisition or disposition of
any security, capital assets, facilities, or any other subject
matter." The acquisition of SOCCO by Ohio Power might fit the
quoted description, so that requirements in the SEC orders might
qualify; but it is impossible to identify any FERC requirement that
is imposed (as § 318 demands) "with respect to the same subject
matter." One might say, we suppose, that a FERC rate requirement is
imposed "with respect to the disposition" of electric power --
though it does some violence to the interpretive rule of
ejusdem generis to say that electric power qualifies as an
"other subject matter" at the end of a list that includes
securities, capital assets and facilities,
see, e.g., Harrison
v. PPG Industries, Inc., 446 U. S. 578,
446 U. S. 588
(1980);
id. at
446 U. S. 601
(REHNQUIST, J., dissenting);
Third National Bank in
Nashville
Page 498 U. S. 85
v. Impac Limited, Inc., 432 U.
S. 312,
432 U. S. 322
(1977). But even if one accepts that FERC's rate order is a
requirement qualifying under § 318, it is still a requirement with
respect to a different subject matter from (and not, as § 318
requires, "with respect to the same subject matter" as) the
acquisition of SOCCO. The combination of SEC requirements with
respect to the acquisition of SOCCO and FERC requirements with
respect to the disposition of electric power would not bring § 318
into play. [
Footnote 3]
III
Our conclusion that § 318 has no application to this case does
not end review of the FERC order. Remaining to be resolved is the
alternate ground relied upon by Judge Mikva's concurrence in the
Court of Appeals,
Ohio Power Co. v. FERC, 279 U.S.App.D.C.
at 337, 880 F.2d at 1410 -- namely, the argument that FERC's
decision violates its own regulation, which provides that, where
the price of fuel purchased from an affiliate "is subject to the
jurisdiction of a regulatory body, such cost shall be deemed to be
reasonable and includable" in wholesale rates. 18 CFR § 35.14(a)(7)
(1990). Also available, and unresolved by the Court of Appeals, is
the argument that the FERC-prescribed rate is not "just and
reasonable" because it "traps" costs which the government itself
has approved -- disregarding a governmental assurance, possibly
implicit in the SEC approvals, that Ohio Power will be permitted to
recoup the cost of acquiring and operating SOCCO.
Cf. Nantahala
Power & Light Co. v. Thornburg, 476 U.
S. 953 (1986). We express no view on these questions,
and leave them to be resolved by the Court of Appeals.
Page 498 U. S. 86
The judgment is reversed, and the case remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice SOUTER took no part in the consideration or decision of
this case.
[
Footnote 1]
The vast majority of these were orders under § 203, in
connection with utilities' requests for approval of merger or of
disposition of assets.
See Florida Power Corp., 2 FERC �
61,038, p. 61,092 (1978);
Potomac Edison Co., 54 F.P.C.
1465, 1466 (1975);
Union Light, Heat & Power Co., 39
F.P.C. 277, 279 (1968);
Buckeye Power, Inc., 38 F.P.C.
519, 520 (1967);
Buckeye Power, Inc., 38 F.P.C. 253, 259
(1967);
Minnesota Power & Light Co., 37 F.P.C. 1059,
1060-1061 (1967);
Arkansas Power & Light Co., 35
F.P.C. 341, 341 (1966);
Orange & Rockland Utilities,
Inc., 34 F.P.C. 107, 108 (1965);
Public Service Co. of New
Hampshire, 34 F.P.C. 17, 20 (1965);
Arkansas Power &
Light Co., 32 F.P.C. 1537, 1539 (1964);
Pennsylvania Power
& Light Co., 32 F.P.C. 1263, 1265 (1964);
Kentucky
Utilities Co., 32 F.P.C. 622, 623 (1964);
South Carolina
Electric & Gas Co., 29 F.P.C. 1045, 1048 (1963);
Philadelphia Electric Co. 28 F.P.C. 1025, 1027 (1962);
Arkansas Power & Light Co., 28 F.P.C. 844, 846 (1962);
Pennsylvania Electric Co., 27 F.P.C. 81, 84 (1962);
Cincinnati Gas & Electric Co., 25 F.P.C. 1195, 1196
(1961);
Arkansas Power & Light Co., 25 F.P.C. 1151,
1152 (1961);
Alabama Power Co., 25 F.P.C. 1018, 1020
(1961);
Northern States Power Co., 25 F.P.C. 974, 977
(1961);
Central Vermont Public Service Corp., 25 F.P.C.
146, 149 (1961);
Northern States Power Co., 24 F.P.C. 457,
460 (1960);
Commonwealth Edison Co., 24 F.P.C. 94, 96
(1960);
Minnesota Power & Light Co., 23 F.P.C. 868,
869 (1960);
Mississippi Valley Public Service Co., 23
F.P.C. 104, 108 (1960);
Central Vermont Public Service
Corp., 22 F.P.C. 737, 739 (1959);
Arkansas Power &
Light Co., 22 F.P.C. 457, 458 (1959);
Northern States
Power Co., 21 F.P.C. 780, 782 (1959);
Conowingo Power
Co., 21 F.P.C. 511, 513-514 (1959);
Philadelphia Electric
Power Co., 21 F.P.C. 157, 160 (1959);
Wisconsin Michigan
Power Co., 20 F.P.C. 358, 360 (1958);
Northern States
Power Co., 20 F.P.C. 355, 357 (1958);
Orange and Rockland
Utilities, Inc., 20 F.P.C. 205, 206-207 (1958);
Orange and
Rockland Electric Co., 19 F.P.C. 269, 276 (1958);
Pacific
Gas & Electric Co., 18 F.P.C. 827, 829 (1957);
Northern States Power Co., 18 F.P.C. 532, 536-537 (1957);
Pennsylvania Power & Light Co., 18 F.P.C. 525, 528
(1957);
Northern States Power Co., 18 F.P.C. 395, 397
(1957);
Northern States Power Co., 18 F.P.C. 135, 137
(1957);
Kentucky Utilities Co., 18 F.P.C. 44, 46 (1957);
Amesbury Electric
brk:
Light Co., 18 F.P.C. 1, 1 (1957);
Nantahala Power
& Light Co., 17 F.P.C. 899, 901 (1957);
Cincinnati Gas
& Electric Co., 17 F.P.C. 669, 670 (1957);
Northern
States Power Co., 17 F.P.C. 639, 641 (1957);
Georgia Power
& Light Co., 17 F.P.C. 324, 327 (1957);
Northern
States Power Co., 16 F.P.C. 876, 880 (1956);
Scranton
Electric Co., 15 F.P.C. 1078, 1081 (1956);
St. Joseph
Light & Power Co., 14 F.P.C. 985, 985 (1955);
Frontier
Power Co., 14 F.P.C. 941, 944 (1955);
Carolina Aluminum
Co., 14 F.P.C. 829, 830 (1955);
Baltimore Gas and Electric
Co., 14 F.P.C. 821, 822 (1955);
Pennsylvania Water &
Power Co., 14 F.P.C. 706, 711 (1955);
Cincinnati Gas &
Electric Co., 14 F.P.C. 639, 641 (1955);
Connecticut River
Power Co., 14 F.P.C. 501, 503 (1955);
Pacific Gas &
Electric Co., 13 F.P.C. 1563, 1564 (1954);
Pacific Gas
& Electric Co., 13 F.P.C. 1334, 1335 (1954);
Rockland
Light & Power Co., 13 F.P.C. 1300, 1302 (1954);
Kentucky Utilities Co., 13 F.P.C. 907, 908 (1954);
West Penn Power Co., 13 F.P.C. 866, 868 (1954);
Ohio
Edison Co., 12 F.P.C. 1437, 1438 (1953);
Lake Superior
District Power Co., 12 F.P.C. 1434, 1435 (1953);
Wisconsin
Power & Light Co., 12 F.P.C. 1394, 1395-1396 (1953);
Wisconsin Michigan Power Co., 12 F.P.C. 1318, 1319 (1953);
Louisiana Power & Light Co., 12 F.P.C. 1168, 1169
(1953);
Kansas City Power & Light Co., 11 F.P.C. 1112,
1113 (1952);
Kansas Gas & Electric Co., 11 F.P.C.
1114, 1115-1116 (1952);
Potomac Light & Power Co., 11
F.P.C. 1069, 1070 (1952);
South Penn Power Co., 11 F.P.C.
1070, 1071 (1952);
Missouri Public Service Co., 10 F.P.C.
1120, 1122 (1951);
Athol Gas & Electric Co., 10 F.P.C.
729, 731 (1951);
Pennsylvania Electric Co., 9 F.P.C. 1304,
1306 (1950);
Rhode Island Power Transmission Co., 9 F.P.C.
942, 944 (1950);
Wisconsin Power & Light Co., 9 F.P.C.
859, 861 (1950);
Northwestern Illinois Gas & Electric
Co., 9 F.P.C. 862, 863-864 (1950);
Indiana & Michigan
Electric Co., 9 F.P.C. 617, 619 (1950);
Potomac Electric
Power Co., 8 F.P.C. 997, 997 (1949);
Betlows Falls
Hydro-Electric Corp., 7 F.P.C. 777, 780 (1948);
Pennsylvania Power & Light Co., 6 F.P.C. 428, 429
(1947);
Northern Virginia Power Co. 5 F.P.C. 458, 459
(1946);
Central Vermont Public Service Corp., 4 F.P.C.
1001, 1002 (1945);
Worcester Suburban Electric Co., 4
F.P.C. 929, 930-931 (1945);
Wachusett Electric Co., 4
F.P.C. 920, 921 (1945);
California Public Service Co., 4
F.P.C. 812, 814 (1944);
Utah Power & Light Co., 4
F.P.C. 791, 792 (1944);
Indiana General Service Co., 4
F.P.C. 783, 785 (1944);
Empire District Electric Co., 4
F.P.C. 665, 669 (1944);
Virginia Electric & Power Co.,
4 F.P.C. 51, 53-54 (1944);
Eastern Shore Public Service
Co., 4 F.P.C. 382, 384 (1943);
Otter Tail Power Co.,
3 F.P.C. 1054, 1056 (1943);
Superior Water, Light & Power
Co., 3 F.P.C. 960, 962 (1943);
Cincinnati Gas &
Electric Co., 3 F.P.C. 883, 885 (1942);
Point Pleasant
Water & Light Co., 3 F.P.C. 755, 757 (1942);
Eastern
Shore Public Service Co., 3 F.P.C. 723, 724 (1942);
Florida Power Co., 3 F.P.C. 719, 719 (1942);
Virginia
Public Service Co., 3 F.P.C. 704, 706 (1942);
Associated
Maryland Electric Power Corp., 3 F.P.C. 646, 652 (1942);
Montana-Dakota Utilities Co., 3 F.P.C. 629, 631 (1942);
In re Pennsylvania Electric Co., 3 F.P.C. 544, 546 (1943);
In re Pennsylvania Electric Co., 3 F.P.C. 557 5f8 (1943),
In re Olcott Falls Co., 3 F.P.C. 310 312 (1942);
South
Carolina Electric & Gas Co., 3 F.P.C. 1007, 1011 (1943);
Otter Tail Power Co., 2 F.P.C. 935, 936 (1941);
In re
Twin State Gas & Electric Co., 2 F.P.C. 122, 123 (1940);
Lexington Utilities Co., 1 F.P.C. 787, 787 (1939);
In
re George B. Evans, 1 F.P.C. 511, 515-518 ( 1937)
A large number of orders discussing § 318 arose under § 204, in
connection with requests for approval of securities sales or
issuance.
See Buckeye Power, Inc., 38 F.P.C. 253, 259
(1967);
Orange & Rockland Utilities, Inc., 34 F.P.C.
107, 108 (1965);
Philadelphia Electric Co., 28 F.P.C.
1025, 1027 (1962);
Utah Power & Light Co., 28 F.P.C.
97, 98-99 (1962);
Pacific Power & Light Co., 27 F.P.C.
623, 626 (1962);
Northern States Power Co., 25 F.P.C. 974,
977 (1961);
Northern States Power Co., 24 F.P.C. 457, 460
(1960);
Mississippi Valley Public Service Co., 23 F.P.C.
104, 108 (1960);
Holyoke Water Power Co., 21 F.P.C. 676,
678 (1959);
Conowingo Power Co., 21 F.P.C. 511, 513-514
(1959);
Minnesota Power & Light Co., 21 F.P.C. 214,
215 (1959);
Northern States Power Co., 20 F.P.C. 355, 357
(1958);
Orange & Rockland Utilities, Inc., 20 F.P.C.
205, 207 (1958);
Orange & Rockland Electric Co., 19
F.P.C. 269, 275-276 (1958);
Holyoke Water Power Co., 18
F.P.C. 821, 826 (1957);
Northern States Power Co., 18
F.P.C. 532, 536-537 (1957);
Kentucky Utilities Co., 18
F.P.C. 44, 46 (1957);
Northern States Power Co., 16 F.P.C.
876, 880 (1956);
Interstate Power Co., 15 F.P.C. 1355,
1356-1357 (1956);
Rockland Light & Power Co., 13
F.P.C. 1300, 1302 (1954);
Wisconsin River Power Co., 8
F.P.C. 1111, 1112 (1949);
In re Oklahoma Gas & Electric
Co., 5 F.P.C. 52, 54 (1946);
Montana-Dakota Utilities
Co., 3 F.P.C. 629, 631 (1942);
California Electric Power
Co., 2 F.P.C. 1099, 1100 (1941);
Montana-Dakota Utilities
Co., 2 F.P.C. 1027, 1028 (1941);
Otter Tail Power
Co., 2 F.P.C. 1022, 1024-1025 (1941);
Nevada-California
Electric Co., 2 F.P.C. 956, 957 (1941);
Otter Tail Power
Co., 2 F.P.C. 935, 937 (1941);
In re Montana-Dakota
Utilities Co., 2 F.P.C. 350, 356 (1941);
Sierra Pacific
Power Co., 2 F.P.C. 839, 841 (1940);
Montana-Dakota
Utilities Co., 2 F.P.C. 831, 833 (1940).
Only a few orders involved § 301 (accounting requirements) and §
304 (reporting requirements).
See Appalachian Power Co. 28
F.P.C. 1199, 1223-1237 (1962);
Jersey Central Power & Light
Co., 14 F.P.C. 858, 859 (1955);
Metropolitan Edison
Co., 14 F.P.C. 736, 737 (1955);
In re Arkansas Power &
Light Co., 8 F.P.C. 106, 127-128 (1949);
Northern Indiana
Public Service Co. 4 F.P.C. 1070, 1071 (1945);
In re
Superior Water, Light & Power Co., 3 F.P.C. 254, 257
(1942).
[
Footnote 2]
The slight indication in the legislative history that conferees
who added the phrase "or any other subject matter" might have
intended such a general conflicts provision,
cf.
H.R.Conf.Rep. No. 1903, 74th Cong., 1st Sess., 75 (1935), is
contradicted by the fact that their revision eliminated the word
"or" that had previously appeared before "facilities," rather than
the "or" that introduced the fourth category.
Compare id.
at 63 with S. 2796, 74th Cong., 1st Sess., 292 (In House, June 13,
1935), and S. 2796, 74th Cong., 1st Sess., 295 (In Senate, May 13,
1935). In any case, the legislative history is overborne by the
text.
[
Footnote 3]
The same conclusion would follow if we regarded the action
qualifying for § 308 treatment to be, not Ohio Power's acquisition
of SOCCO, but Ohio Power's acquisition of coal (implicit in its
acquisition of SOCCO). It remains impossible to find any FERC
requirement imposed "with respect to the same" acquisition. The
FERC pricing requirement imposed with respect to the disposition of
electric power is still not preempted by § 318.
Justice STEVENS, with whom Justice MARSHALL joins,
concurring.
While I join the Court's opinion because I am persuaded that its
interpretation of the statute is correct, I add this additional
explanation of my vote because neither the parties, the interested
agencies, nor the Court of Appeals considered the construction of §
318 that the Court adopts today. [
Footnote 2/1]
Even if § 318 were read broadly to give the SEC priority over
FERC whenever the requirements of the two agencies conflict, I
would come to the same conclusion. The SEC's orders at issue in
this case do not conflict with FERC's requirement that Ohio Power
recover only the market price of coal from its customers. The SEC
orders approving the creation and capitalization of SOCCO do not
require it to pass all coal production costs on to Ohio Power and
its affiliates. [
Footnote 2/2]
Page 498 U. S. 87
At most, these orders establish a ceiling requiring that the
price SOCCO charges its affiliates for coal remain at or below its
costs. The market price for coal during the time relevant to this
proceeding has been less than SOCCO's costs. [
Footnote 2/3] Consequently, Ohio Power is able to comply
with the requirements of both agencies.
There is no risk of conflict between the requirements of the SEC
and FERC in this case. The SEC's orders limit the price which Ohio
Power pays its supplier -- SOCCO. The FERC order, on the other
hand, limits what portion of its fuel costs Ohio Power may pass
along to its customers. The two agencies' requirements limit Ohio
Power's financial relationships with different parties -- its
supplier and its customers. The two requirements also concern
different aspects of fuel costs -- the amount Ohio Power must pay
for its fuel and how much of those fuel costs it can recover
directly from its customers.
Finally, it is significant that the Court of Appeals' reading of
§ 318 would create a gap in the regulatory scheme that Congress
could not have intended. Congress enacted PUHCA to prevent
financial abuses among public utility holding companies and their
affiliates.
Gulf States Utilities Co. v. FPC, 411 U.
S. 747,
411 U. S. 758
(1973);
see also § 1(b) of PUHCA, 15 U.S.C. § 79a(b). It
entrusted the SEC, the agency with the expertise in financial
transactions and corporate finance, with the task of administering
the act. The SEC carries out its duties essentially by monitoring
inter-affiliate financial transactions and eliminating potential
conflicts of interest.
See generally Public Utility
Holding Company Act: Hearings on H.R. 5220, H.R. 5465, and H.R.
6134 before the House Subcommittee on Energy Conservation and Power
of the House Committee on Energy and Commerce, 97th Cong., 2d
Sess., 553, 579-583 (1982). Congress enacted the FPA to regulate
the wholesale interstate sale and distribution of electricity.
Page 498 U. S. 88
Gulf States Utilities Co. v. FPC, supra, at 758. It
entrusted the administration of the FPA to the FPC and later the
FERC as the agency with the proper technical expertise required to
regulate energy transmission. One of the FPA's principle goals is
to ensure that the rates customers pay for their electricity are
"just and reasonable."
See §§ 205, 206(a) of the FPA, 16
U.S. C. §§ 824d, 824e(a).
Congress enacted PUHCA to supplement, not supplant, the FPA. Yet
this is the effect that the Court of Appeals opinion would have in
those areas where the two agencies' authority overlap. In these
overlapping areas, the subject matter would come under the scrutiny
of only the SEC, despite the difference between the goals and
expertise of the two agencies. [
Footnote 2/4] As the Court of Appeals decision would
apply in this case, Ohio Power would be allowed to buy coal at
prices that would be higher than those paid by any utility not
owned by a holding company, and then pass those higher costs along
to its customers. I do not believe that Congress intended to
relieve utilities owned by holding companies of substantial
technical regulation because of their corporate structure. It
intended those utilities to be subject to the regulation of both
the SEC and FERC as much as practical. The Court's construction of
§ 318 is consistent with this goal.
[
Footnote 2/1]
I agree with the Court that the legislative history provides
little guidance in interpreting the scope of § 318's "
other
subject matter'" language. See ante at ___, n. 2. The
relevant information provided by the legislative history
essentially cancels itself out. The Conference Report on the Public
Utility Act contains a statement to the effect that the "or other
subject matter" language in § 318 should be read as all inclusive.
That Report stated: "[t]he conference substitute [of § 318] is
enlarged to include any conflict arising under this bill."
H.R.Conf. Rep. No. 1903, 74th Cong., 1st Sess., 75 (1935). The
revision of § 318 that accompanied that Report, however, contained
language that indicates that "or any other subject matter" is a
subset of the "acquisition or disposition of" language in that
section. That version of § 318 provided:
"[i]f, with respect to the issue, sale. or guaranty of a
security, or assumption of obligation or liability in respect of a
security, the method of keeping accounts, the filing of reports, or
the acquisition or disposition of any security, capital assets,
facilities, or any other subject matter. . . . "
Id. at 63.
[
Footnote 2/2]
See ante at
498 U. S.
75-76.
[
Footnote 2/3]
See ante at
498 U. S.
76-77
[
Footnote 2/4]
For example, §§ 9 and 10 of PUHCA, 15 U.S.C. §§ 79i, 79j,
require SEC approval before a holding company and any of its
affiliates acquire any securities of assets of a utility. The SEC
review of such a merger seeks, among other things, to avoid undue
concentration of control over utilities.
See 15 U.S.C. §
79j(b). Section 203 of the FPA, 16 U.S.C. § 824b, requires FERC to
approve a public utility's sale, lease, merger, or consolidation of
its facilities. FERC's goals under § 203 of the FPA are to maintain
adequate service and coordination of facilities.
See Savannah
Elec. & Power Co., 42 FERC � 61,240, p. 61,778 (1988).
Under the Court of Appeals' interpretation of § 318, FERC review of
any matter involved in a sale of part or all of a utility's
facilities to a holding company would be improper despite the
differing focus and goals of the two agencies.