City of Vernon, California v. Federal Energy Regulatory Commission, Southern California Edison Company, Cities of Anaheim, Riverside, Intervenors
845 F.2d 1042
D.C. Cir.
1988
Check Treatment

*1 available,12 competitive substitutes VERNON, CITY OF accomplished entry likely be could market Petitioner, CALIFORNIA, strength adequate to client rapidly,13 and Technological pricing. predatory prevent industry changes in the add

and market ENERGY REGULATORY FEDERAL rationales fluidity. These assorted further COMMISSION, Respondent, that there conclusion support the Board’s Company, Southern California impact competitive bar no adverse Riverside, Anaheim, et merger. al., Intervenors. No. 87-1255. Community Needs C. Appeals, Court of United States found, effect anticompetitive Even were District of Columbia Circuit. approve a bank authority to the Board has 26, Argued Feb. 1988. fulfills a company acquisition that holding April Decided de- Board made community need. community tailed, findings of persuasive 3(c) priority.

benefit, this address §

See J.A. at 38-46.

Conclusion empowers the the BHCA

Mindful that financially acqui- sound

Board authorize v. First Governors

sitions, see Board of Cory.,

Lincolnwood (Board (1978) 505, 515, 58 L.Ed.2d com- financial and

expertise to determine holding company effects of bank

petitive substantial conclude that

acquisition), we Board’s support exists

evidence acquisition. 3(c) BNY’s approval of

§ appear espe- entrants to be 13. Barriers new emphasized custodial function Board 12. The operations cially services; low in the case of GSC because banks and core of ADR that is the presently perform this service for banks role, can this nonbank institutions enlarge prac- presumably themselves offer close number of entities indeed include customers. foreign tice to funds in the form of mutual substitutes foreign sale of shares. or direct *2 Fieldman, Channing Arnold with whom Strother, Jr., D.C., Washington, D. was on brief, petitioner. F.E.R.C., Leveque, Atty., Joanne with Cook, Counsel, Catherine C. General whom Feit, Solicitor, F.E.R.C., M. and Jerome brief, D.C., Washington, were on the respondent. Strebel, whom Bonnie

Sandra J. S. Williams, Jr., George H. Blair and Wash- brief, D.C., ington, for inter- were on Anaheim, et al. venors Cities of Cal., Bower, Angeles, Los Paul G. Merriman, M. Brian J. Mc- whom Richard Manus, D.C., Washington, and Helen I. Cal., Bendix, Angeles, Los were on the brief, California for intervenor Southern Frank Edison Richard K. Durant and Co. Rosemead, Cal., Cooley, also entered J. pearances for intervenor Southern Califor- Edison nia Co. WALD, Judge,

Before Chief WILLIAMS, Circuit SILBERMAN Judges. filed

Opinion for the Court Judge Circuit SILBERMAN. Dissenting Opinion filed Circuit Judge WILLIAMS. generation

SILBERMAN, Judge: capacity of facilities it must Circuit peak construct meet de- maintain or city is a California whole- Fort Pierce Auth. v. mand. See Utils. California Edi- sale customer of Southern (D.C.Cir.1984). F.2d Fed- Company. has asked the son Vernon buys electricity city Energy Regulatory to re- eral and resells it to a “interruptible quire to sell *3 residential, commercial, and in- variety of may pass power so Vernon electric service” customers. Vernon states that dustrial in its retail customers the service on to customers, several of its industrial who the manner that Edison now much same purchase interruptible would be able provides interruptible service to its own they power from Edison were its direct FERC retail declined direct customers. customers, pro- have asked Vernon to service, holding proposed the that order equivalent interruptible ser- vide them an facie case failed to make Vernon consequently vice. Vernon asked Edison anticompetitive that Edison’s was behavior and, power interruptible sell it at wholesale discriminatory. unduly But FERC hearing at a an before Administrative Law give any indication of show- failed to what Judge on the of a rate in- reasonableness necessary sufficient—to make —or Edison, by crease filed asked FERC to re- grant accordingly facie case. We provide quire a service. Edison petition the review remand to for exposition for a of its reason- fuller hearing Vernon’s chief witness in the ing. Edison testified that could whole- interrupti- sale customers such Vernon

I. power rate virtually ble under the same interrupti- supplies Edison elec- used for retail sales of Southern California schedule power, power retail and ble if the schedule revised to tric to both Edison, regu- City the customers. Its wholesale rates are the customer “mak[e] FERC; by by requir[e] City to lated its retail rates the have a contract interruptible ser- Utilities Ed- customer for California Public Commission. [retail] vice, procedure requiring interruptible provid[e] ison offers to its for an service commercial to have communica- retail industrial and customers customer suitable relatively equipment, procedure tions under who demands electing notify inter- power. City A is which Edison can customer that service rupt exchange Appendix to reduce its costs in the customer.” able Joint bearing upon some risk it had edited Edison schedule will called an witness manner, consumption put to cut its if overall use in evi- such a it was cross-examination, approaches capacity. Edison’s The custom- dence. On the witness service, designates charges, er a “firm” level of further testified that demand interrup- request monitoring Edison can on ten or thirty minutes and enforcement of tions, interruption notice that the reduce customer its electric- and the criteria for return, In ity proposed use to firm level. would all be identical under the system interruptible customer a discount—in existing receives the form to Edison’s against charge operations. of a credit its demand service —for power, available, the use of when above Vernon also a handwritten submitted firm service level. memorandum, Edison obtained plain request, advantages through discovery apparently customer are and, representatives us Edi- suggests, meeting record before infrequency Steel, enhanced of calls for son and Bethlehem one of Vernon’s interruption largest indi- by Edison. Edison benefits The memorandum run; $74,000 long can, primarily Edison dur- cates save Bethlehem Steel could demand, ing periods peak using interruptible inter- ser- reduce month Edison’s levels, ruptible to their Bethlehem customers firm vice schedule and states that existing suggested turn allows Edison to con- reduce alternatives to its very hardship Edi class “with little Vernon: FERC could order tract despite vague interruptible service available the rather allusions to tech- son to make resale, Id. or Bethlehem nical difficulties made to Vernon [Edison].” 65,360. directly from expressly Edison. The AU receive service declined to argued evidence, allegations of this reach the basis discrimination and behavior, discriminated anticompetitive AU opining to the section in violation of against reasonableness of proposal “[t]he Act, U.S.C. the Federal Power apparent is so a decision in its favor is 824d(b) (1982), avail by refusing to make possible on this basis alone.” Id. He ac- § service the same able to it cordingly ordered that it did so and that offered retail be offered to the wholesale class of cus- advantage anticompetitive an to maintain tomers. support In of this in the retail market. exception Edison took rul- AU’s contention, analogy suggested ing, and the full Commission reversed. *4 “price its situation and the The first acknowledged was cases, FERC’s squeeze” which established obligation, imposed under an by Federal by remedy price to authority discrimination Conway Corp., Power Commission v. 426 utility companies between their wholesale U.S. 96 S.Ct. 48 L.Ed.2d 626 Appendix See Joint and retail (1976), allegations “to consider of undue AU); see also (argument to at 8 and anti-competitive discrimination behav- (relying on Brief before the AU Initial involving ior retail vis-a-vis wholesale Power Commission v. Federal Co., rates.”1 Southern Cal. Edison 38 Corp., 1999, 48 L.Ed. ¶ 61,112 61,040 (1987). F.E.R.C. & n. 76 (1976), applying 2d 626 the first case said, not, however, The Commission it could utilities).

price squeeze had, proceed solely as the AU on the basis responded chief that Edison’s witness proposal that a for service was reasonable. already position offer its Vernon was 61,113. 38 F.E.R.C. at The Commission interruptible selecting power by customers passed question over the of its under figure, its own firm above it would provision Act to Federal Power order Edison, not inter- draw and Instead, particular requested. service rupting its customers use when total it held had “not Vernon sustained its bur- argued reached that level. Edison also going den forward with evidence unspecified were “ex- that there several pro- utility that failure of the show tremely difficult technical issues” that dis- requested unduly vide the service is pro- would to be resolved before Id. preferential.” criminatory or posed possible. service would be opinion two-part sets Commission’s forth a Decision, discriminatory Southern AU’s Initial test for treatment where Co., (CCH) offered, re- Cal. Edison or F.E.R.C. different rates services are 1163,098(1984), showing interruptible quiring unequally concluded ser- that the treat- provided situated,” be “similarly vice could to the ed and customers are Commission, statutory hearing 1. The bases for this role are found after a Whenever Act, §§ of the Federal upon Power upon complaint, had own motion or its 824d, (1982). 824e §§ U.S.C. provides: Section rate, any charge, shall find that or classifica- tion, demanded, observed, charged, or collect- shall, public utility any respect No any utility any public ed for transmission subject jurisdiction transmission or sale to the jurisdiction subject Com- or sale mission, of the Commission, (1) any grant of make or rule, any regulation, practice, or preference advantage any person or undue or rate, charge, or or contract affected [sic] any person any prejudice undue unreasonable, unduly unjust, is classification discriminatory (2) disadvantage, any or or maintain unrea- preferential, the Commis- rates, service, charges, difference in sonable just sion shall rate, and reasonable determine facilities, any respect, or in other either as classification, rule, charge, regulation, between localities or as between classes of practice, or contract to be thereafter observed service. force, and shall and in fix the same order. 206(a) Section states: ser- of the Commission’s true rationale ... sought the “same service Id,.2 discernible.” actually elsewhere. not vice” offered to Ver- application of that standard FERC's rehearing, reply- The Commission denied observation consisted of its non’s claim objections the non-record Vernon ing that receipt of both that Vernon’s simply meet it was forced to claimed non-interruptible “may” con- services “prima of a unsatisfied elements and the state- stitute difference allegation “mere case.” stated the evidence ... there was “lack of ment anticompetitive behavior” was not suffi- any among things, sim- concerning, prima facie cient to establish such a case. and wholesale ilarities between retail ¶ 61,046 61,142 (1987). 39 F.E.R.C. Ver- flows on the possible load petitioned non this court review. ..., system effect of charges.” capacity collection rates on the II. basis, held Vernon the Commission argues evidence to make out a case of discrimina- had failed prima facie case of does constitute a undue Id. tion. discrimination, and that facie case rehearing, Vernon application In its meager not Edison’s re rebutted retail and re- argued that while “Edison’s issues, sponse. We not reach those do similarly certainly sale customers however, given virtually us has pur- respects for all situated in all guidance elements of no poses,” “similarly it was shown sure, case. To FERC has stated to the extent situated customers] [to *5 charge discrimination must be of to the issue.” Vernon applicable instant complain the supported evidence that “physical implementa- also stated that of ant’s situation is similar to that one who proposed tion” of the service it would be enjoys currently request the same service the “same” as of the ed, given but it has no content the terms provided its retail custom- service “similarly “same situated” and service.” objected further ers. Vernon upon agency The basis action is which questions pro- of the operation about grounded posed system raised by the Commission clarity be set forth as to must put were all contentions forward It will not do for a be understandable. for the first time before the Commission guess compelled to be court at and not aired before the ALJ. Because of action; agency’s underlying the alleged on Commission’s reliance issues expected nor can a court be chisel that AU, presented not com- precise which must what be plained deprived “any it had been mean- agency vague In has left and indecisive. opportunity objec- ingful to meet ... [the words, know “We must what when being head-on the record was tions] duty decision means before becomes Furthermore, compiled.” argued, say right wrong.” ours to it is whether equivocation Commission’s over ex- 194, Chenery Corp., v. tent to it relied SEC which on the various mat- 332 U.S. 196- 97, 1575, 1577, (1947) ters raised Edison meant breadth 91 L.Ed. 1995 “[t]he nomenclature, 2. FERC has typically relied on factors like “un- these shift is unclear because defining prima facie case of undue discrim ordinary like the where a who situation See, Co., e.g., is, ination. F.P.C. Southern Cal. Edison prima as a establishes law, case matter of facie 2167, (1977); 2185-86 Indiana & Mich. defending party entitled to relief unless the Co., 1383, (1977); Elec. 59 F.P.C. also case, prima rebuts the the establishment FERC, Pipeline ANR Co. v. 771 F.2d squeeze only enough price means case facie has been shown (D.C.Cir.1985) curiam). (per inquiry." warrant Illinois Bethany 670 F.2d v. case,” "prima Commission used as (D.C.Cir.1981) (modified reh’g). on The Com- opposed going "burden of forward with evi- variety mission did not indicate dence,” for the first time in the denial of rehear- facie case was made. not ing. coterminous, concepts The extent to which these significance thus of the M., might in isolation (quoting Chicago, St. viewed still United States be deemed R.R., 499, 511, 55 anticompetitive placed P. & P. when in the context 462, 467, (1935)). 79 L.Ed. 1023 competing 278-79, rates. Id. at S.Ct. at 2004. It equally possible seems that, circumstances, in other that a customer or appearing “similarly situated” and “same service” “similarly first blush not to be situated” or sufficiently self-explanatory would be so “same,” respectively, might meet gloss requirements further those that no analysis criteria when properly necessary. case would be focused to take account of the complicated, necessity compar- This area of the law is how- ever, by price squeeze short, doctrine wholesale and retail services. In proved in Conway, Federal Power v. under “same service” and “sim- Corp. charge Conway ilarly involved a spell situated” requirement cannot utility company that an Arkansas requested that a service be identical in all —which wholesale, sold where its rates respects existing to an service.4 to the Federal Power Commis- (“FPC”) retail, preserved Whether Vernon regulation, sion's and at this is, jurisdiction Conway-type argument however, outside the FPC’s unfair- —was ly charging question, in- close Judge wholesale customers an Williams’ dissent prevent flated rate in ing opinion order to their effec- makes clear. Vernon’s counsel competition tive for retail business. The did analogy draw an to Conway in oral FPC refused consider the claim of anti- argument ALT, before the and Vernon’s behavior, competitive reasoning that it had papers consistently case, cited the al authority no over retail rates. 426 U.S. at general proposition beit for the that FERC Supreme 96 S.Ct. at 2002. The Court authority remedy inter-jurisdictional logic, affirmed court’s rejection this of that discrimination. But Vernon never said holding although the FPC had clarity impact what has or rates, only obligation to set should have on the terms “similarly situ 206(a) under sections of the Fed- ated” and “same service.” We prevent eral Power Act to the maintenance objection consider an to an order of the “any rates, unreasonable difference in *6 objection urged Commission unless that is service, facilities, charges, any or in other application in the rehearing, 16 U.S.C. respect,” 824d(b), 16 U.S.C. included the § 825Z, and the Commission cannot be § power to relationship consider the purse responses asked to make silk to jurisdictional nonjurisdictional rate arguments, sow’s ear Building & 277-82, structures. Id. at 96 S.Ct. at 2003- Brock, Dep’t Constr. v. 838 F.2d Trades 06. 1258, (D.C.Cir.1988). balance, 1271-72 Conway suggest though, does not passages that Vernon we believe the from Ver necessarily application rehearing entitled to the relief non’s it seeks. that we quote But does opinion establish that in Section I of FERC’s this sufficed— “obligation to barely present eliminate unreasonable dis- the issue. Vernon’s —to criminations,” 278, 2004, id. at 96 at similarly S.Ct. contention that it is situated to extends unreasonable treatment of Edison’s retail customers “to the extent impair wholesalers that could ability applicable” their calls on the Commission to ex compete plain retail customers. why particular It fol- distinctions are rele lows, think, “similarly we situated” response vant. And use of FERC’s —its self-defining. case, “same service” are not prima the notion of a facie without in Conway Court any explanation observed that a of the content of that con wholesale rate that was cept completely reasonable when incoherent. —is course, true, proposition 4. Of this impact would be of is to it clear that make Conway, even in the absence of being in the obvious the bare fact of than a wholesaler rather in, retailer, sense that extraneous differences for in- and the nonsubstantive differences that stance, status, operations the locations or sizes of attach to that difference in can in some inquiry. would be irrelevant to a discrimination instances be "distinctions without a difference.”

1048 case, merely noting of prima instead

Thus, might facie we well while particular unformed re elements that relatively the absence approved even sketchy part prima own sponse by FERC Vernon’s not be facie may or approaching anything argument (probably “guess must we case. Otherwise thoughtful dissenting colleague’s our underlying agency’s action.” theory an unex analysis), we cannot sanction 197, 67 Chenery, 332 U.S. at prima facie case plained that no assertion argument, At oral counsel for was agency in It is if the been made. as has understandably unable describe show “We response to claim said standard, would meet FERC’s al Tuesday it it rather than reject because though she indicated that FERC would be rudimentary Wednesday.” No matter how willing to entertain a discrimination claim claim, agency is not entitled under if the as Vernon’s adduced sequitur. respond non See APA to with a satisfy enough evidence to FERC there Shipping v. Maritime Auth. Puerto Rico discrimination. a serious issue of This 327, Comm’n, 678 F.2d Federal Maritime approach, “know-it-when-we-see-it” how (D.C.Cir.) (“[T]he must court’s review 336 ever, explana does not a reasoned rubberstamp agency’s deci merely Here, for in agency tion of an decision.5 agency make clear the sion. The must stance, FERC on a lack of evidence relied whys and wherefores’ ‘basic data and “among things possi regarding, ... (quoting Government of its conclusions.” system load flows on the ... and the ble Comm’n, Federal Guam v. Maritime interruptible rates the collec effect of (D.C.Cir.1964))), 251, F.2d 255 cert. de capacity charges.” tion of 38 F.E.R.C. at 210, 906, nied, 74 L.Ed. 459 U.S. 103 S.Ct. 61,113. did But FERC not indicate that (1982); 2d 167 Gas Trans Columbia capacity evidence on load flows and FERC, 578, F.2d Corp. mission v. pri- necessary component of a charges is a (D.C.Cir.1979); Greater Boston Television case, explain the ma facie much less rele (D.C.Cir. 841, FCC, Corp. v. 444 F.2d vance of those items. Nor did it describe 1970)(a uphold findings “less court will prima place things” “other clarity,” than ideal but “must not be left to reasons”), any case. We are thus left without facie findings guess agency's legal factual or on which to review basis denied, rt. ce Gas, decision. Columbia FERC’s See (1971). 29 L.Ed.2d 701 When FERC latitude, ample F.2d at 593. FERC has rely chooses to on the mechanism of a process, of due case, within constraints prima must have presenting “procedures for establish rejects what a facie case is before it case,” rebutting claims for failure meet that standard. (D.C.Cir. not, here, 672 F.2d as it has use the Batavia traditional 1982), shadowy if it legal phrase merely requires the establishment as a deus ex *7 case, explain say FERC must what elements of a facie it must machina. necessary are and to make a threshold it has set.6 sufficient has, dealing 5. The case is sense instant in this akin to Del- FERC itself in with the correlative Vernon, FERC, parties Light of concern acknowledged fairness to marva Power & Co. v. F.2d 770 explanation importance There, of an (D.C.Cir.1985). imposi- 1131 we said the applying: do of the rationale it is not "[W]e by impossible proof tion an AU of an burden of believe it to be fair or consistent with funda- per against amounted to se rule “selective process party due find in of one mental or another because an favor annualization.” Because FERC had stated it adversary has failed to rule, per imposition had no such se held the we showing not would be make required it was aware proof departure of the burden of be a from Batavia, it." F.2d at 67 of precedent adequate without an matter) (quoting (FERC refusing Opinion FERC No. 63-A in that explanation, reasoned and we vacated re- party hold for that made a Here, explanation. manded such an case, price squeeze allowing undefined, proof completely burden so that opportunity to other additional submit ruling departure each could constitute a fresh price response, light reformulation prior cases. Indeed, analysis). Conway, squeeze after guide- rulemaking instituted which resulted competition explanation of from effective requiring sup- their By Further, plier. could not be a suggest not there since the Commission we do reasons, legal very good directly either number of not reach the wholesaler’s retail technical, might reject sales, for which FERC remedy or it was to the discrimination rely on a attempts to create and Vernon’s by reducing the firm’s wholesale rates to price squeeze. If special of the variation range some level “in the lower of the zone that such a claim there are reasons of law of reasonableness.” Id. at 96 S.Ct. at succeed, simply FERC should could never (internal quotations omitted). Thus, them, explaining Conway how is dis- state Conway since we know that the Commis- tinguishable, relying than on ad hoc rather may sion not dismiss a discrimination claim proposal in the criticism of each individual simply party asserting because the it iden- guise measuring party’s prima only disparity tifies jurisdiction- between If, hand, a claim such as case. on the non-jurisdictional al and rates or service. succeed, opinion, can as FERC’s City Here the retailer 61,112, and FERC’s coun- 38 F.E.R.C. buys at wholesale from Southern Cali- argument suggest, sel’s oral FERC’s Edison, fornia makes a claim to suc- proach resolving may such a claim ceed, carry Conway beyond must well standardless. FERC has committed es- origins. provides interruptible Edison ser- sentially charges the error with which it large vice to some industrial and Vernon; provide it has failed to us with service, commercial retail customers. This adequate reasoning support its decision. service, though at rates well firm below its grant petition We therefore for review very nearly Presumably firm. because may pro- and remand to FERC so that it operation of the beneficent of the law of explanation vide a reasoned of its resolu- (i.e., proposition numbers tion of this case. by holding one portfolio reduce risk It is so Ordered. partly independent of at least risks—the mortality quite reason tables are reliable WILLIAMS, Judge, dissenting: Circuit people for a million but almost worthless In Federal Power Commission v. one), rarely needs to cut short rp., U.S. Co service to its (1976), Supreme L.Ed.2d 626 Court es potential Vernon has a claim under Con- “price squeeze” doctrine. tablished against by way that Edison discriminates it duty held that the Commission’s to set non failing it with ser- discriminatory rates for wholesale inter claim, vice. If it had made such a and the sales, state under §§ responded simply Commission had not- Act, 206(a) of the Federal Power 16 U.S.C. only interrupti- offered 824d(b) 824e(a)(1982),required it to §§ non-jurisdictional ble service to discrimination, possible consider a com automatically require re- would subject jurisdiction, pany to its explanation. mand for further But that is those rates —which to Commis not the claim What Vernon makes. jurisdiction sion under the Act—and the sales, seeks offered is a service not hitherto company’s though even customer, any jurisdictional Edison to “non-jurisdictional.” latter are It reasoned sake, non-jurisdictional. clarity’s buyer the wholesale seller and For we that where competition “pass-through” with each other best call it service. It *8 sales, prices discriminating against pass through to its would enable Vernon to buyers interruptible the wholesale them to rates and own customers the i.e., price squeeze, unfairly provide by disable them service that Edison is able to 290-95, Co., space lines for the establishment of a price squeeze Batavia, 1769-72, (1974) (the case. See Cities be- 40 L.Ed.2d 134 choice not, course, (We requiring F.2d at 86. are rulemaking adjudication lies in the tween and FERC to establish the elements of a discretion)). agency’s first instance within the by rulemaking. case See NLRB v. Bell Aero would, course not at all The Commission of did This profile. of its customer virtue questions good the rea- capacity to address obviously, enhance —for presented one them. If Vernon son no that Edison for industrial compete with theory, presented a the Commission and commercial duty analyse merits have to its and would beyond well takes us That this claim policy. some sort of On that we establish to how It is hard tell seems clear. agree I agree. further with the court all princi- far, stated the as Vernon has never it, Judge nicely puts as Silberman anyone closest it relies. The ple which cannot be asked to make “the Commission stating theory, I so far as has come to responses argu- to purse silk sow’s ear discern, suggestion by for counsel can is I Maj. part company ments.” argument. at oral intervenors application principle. only on the appeared to be when wholesaler Vernon, my judgment, in didn’t un- either advantage important enjoys some business of its claim and there- derstand nature competing duty share that with it is it, misstated or understood it well but fore sells, long doing retailers whom it so past sought aspects sneak its difficult costs. involve drastic additional so will not the Commission. presented never this theo- As Vernon has determine, as I con- So far can Commission, certainly ry to the it is argued asking sistently all it was compelled by the us to assess it is whether interrupti- “the same” treatment as retail provisions of the Feder- non-discrimination reality thereby evading the ble customers— (For effort to al Power Act. an assess unique depend- it asked was that what comparable proposition in the antitrust con- far-reaching evidently ed novel on a text, Travers, Monopolist Have Does Thus, principle. Application in Vernon’s Duty to Deal With Its Rivals? Some Rehearing, it states Case, Thoughts Aspen Skiing on the that Edison proposal was so structured (1986)). general Some Colo.L.Rev. rights precisely would same I questions mind. mention do come to responsibilities vis-a-vis Vernon only suggest them how far this takes us performing proposed as Edi- beyond Conway. equiv- experiences in son connection with First, point principle what does this cus- alent service to its own industrial stop? example, suppose a For wholesaler tomers. lines and a has transmission end-user added). And later it (emphasis See J.A. 151 nearby princi- does Does the retailer not. said that require ple the wholesaler to share the line there is no substantive distinction not, why May If retailer? not? in which the whatever the one instance pass-through this be combined with a entity is an Edison customer industrial sought kind service of the directly and other instances in which here? anything Need retailer billing through physi- is Vernon but Indeed, billing other than services? implementation cal principle not the cover them? methodology schedule is the same. rate Second, competition promoted by is added). (emphasis Id. policy synthetic? such a rather If re- essentially getting everything tailer is true cited that Vernon wholesaler, and operating really as no its initial brief the Administrative before billing agency, actually Judge, simply more than a will Law J.A. compete regulatory able economic commission proposition in an sense? that a reality (and remedy) it in through may Will secure customers entertain a discrimina- political advantages parties compared over wholesaler? tion claim where the pur- regulatory system through jurisdictional non-jurisdictional Will the flow This, all, course, it the half of true costs the service? After chasers. isn’t the along necessary with the wholesaler’s for Vernon to succeed. economies what page well come some makes its diseconomies. On the before Vernon *9 (or simplistic teacher, Commission is not some Socratic clear—and with it proach approach. struggling to tease of that brilliance out of disingenuous) character together Thrasymachi with the pulled up it all who turn city its corridors. applicants for relief novelty, that: When disclaim observation the Commission should be free to take expressed position of applicant’s them at their word. If the re- discrimi- hearing, is that Edison quest category does not fit the into which it it against resale customers when nates shoehorned, has been make the same refuses to applicant be free to show the should to them that is available service available ado, get much door without on to retail pressing more claims. added). Brief of (emphasis See also J.A. 66 Exceptions, Opposing J.A. City of Vernon son of Of course this was bound Anaheim, (same). (Intervenors City of doorstep to arrive on the Commission’s al., analogy price at least raised the et The risk sooner later. from the court’s court, squeeze in their brief to this opinion present with the claim as Brief at Petitioner/Intervenor here, ill-presented as it has been the Com- interruptible-rate participated in the likely adroitly. mission is less to handle it Commission.) dispute Thus Ver- before now, however, the Commission can at Even sought from pretended that it relief non sophisticated briefing least ask for more discrimination, in fact its plain while vanilla parties yet than the offered. And it fudge strawber- underlying theory was hot Regula- enlist the skills of its Office of sprinkles. ry swirl with banana tory Analysis. unpromising Even these luck, may yet, nature of Vernon’s the elusive circumstances it arrive Given claim, hardly surprising it is that the Com- satisfactory approach. at a response missed the subtleties. mission’s hand, directly one it did answer Ver- the central the- purported

non’s claim. To asking only

sis that Vernon as Edison treated some of its retail

treated replied, rather the Commission apparent

mildly, is not that the service “[I]t being requested is the same service that is MONDY, Appellant, William L. at the retail J.A. 140. That offered level.” a tremendous of course was understate- ment. THE OF SECRETARY ARMY, Appellee. obviously

The Commission also sensed asserting complex Vernon was some No. 86-5644. spin Conway. help But with no Appeals, United States Court just ran, theory Vernon as to how the it Circuit. District Columbia tackle the In- failed to head on. deed, around, groped plucked phrase Argued Oct. 1987. bright from the lexicon of administratese April Decided case”), (“prima got on with its other work. Under the sow’s ear/silk

purse principle, I think we should ask no

more. (or

When a blunders with a half-

quarter-) theory, baked we cannot reason- expect

ably the Commission to sift the

claim, search out and articulate some intel-

ligible principle, develop and then an intel-

lectually satisfying policy response. The