*2 CHAMBERS, Before MERRILL and Judges. BROWNING, Circuit MERRILL, Judge. Circuit right This case concerns the Federal Power Commission to the rates at which Southern California Edison sells at wholesale City Colton, to the California. The right commission asserts its under 201 Act, the Federal Power 16 U.S.C. § pertinent portions of which are margin.1 set forth in the “(a) ergy declared that in business at wholesale interstate selling energy transmitting merce, apply electric but shall not public energy deprive ultimate sale of distribution electric a State public interest, with a and that commission of lawful is affected State author- ity relating exportation of matters now Federal generation exercised hydroelectric provided energy in sec extent is trans- tions 824-825r of this title and of that mitted line. across State The Commis- part of which consists of such business sion shall have over all fa- energy in in the transmission of electric cilities for transmission or sale of elec- energy, jurisdic- and the sale of such shall not terstate energy tric have tion, except specifically provided in at wholesale com necessary public interest, sections, merce is said over facilities used for the regulation, energy however, generation such Federal of electric or over fa- ex tend subject to those matters which are used in local distribution or cilities regulation by energy of electric States. for the transmission “(b) provisions commerce, or over of sections 824- intrastate facilities for energy apply 8241i of this title shall to the trans- of electric the transmission energy wholly by mission of electric the transmitter.” sumed commerce and to the sale of electric en- community energy Edi- City of Part was allocated is a of Colton Rec- eighteen persons son Bureau of approximately United States thousand generators lamation from Dam Hoover located near San Bernardino Southern municipal Arizona. In 1958 this account- source electric California. Colton’s per *3 system ed for six utility purchases cent the total electric all of its energy by Edison, handled of it but none Oc- from Edison under contract dated City was traced to filed the Colton. 1945. tober The contract was remainder of ener- Edison’s out-of-state with the Com- California Utilities gy supply Metropolitan comes from the mission and ex- the state commission has jurisdiction pursuant Water District of California ercised over all of Edison’s a contract into in Colton entered 1945 to sales to that time. In the since through States, acting United jurisdiction, exercise of its the state Secretary has, Interior, party. protest Colton, mission over was a charges. agreed that Under contract Edison authorized increases Edison’s portion take a district’s unused May 9, 1958, petition On Colton filed a energy specified paid firm at rates requesting the Federal Power Commis- to the United States for the credit of jurisdiction sion to assert over the rates the district. A collateral contract charged by pe- Edison. The basis of the party which the United States was not a energy tition was that among provided, things, for the to Colton at wholesale and that the energy transmission of this dis- Power were therefore to Federal trict’s lines district’s Camino 201(b) under Commission control § switching station in California and petition Act. Federal Power thence connection to Edison’s 220 kv opposed by and Edison Cali- system Hayfield transmission at in Cal- fornia Public Utilities Commission. energy ifornia. It is some of this Following hearings before Federal the commission determined reaches the Power commission City Colton, passing Hayfield cluded that it had Highgrove Edison’s substation to Col- the rates and entered or- ton.2 among requiring Edison, der other mat- apparent authority It is over the ters, file its rate schedules and to ac- initial sale to Edison Nevada not in moneys for all count collected in excess issue, for the United States controls the July, 1954, pe- rates. has of its Edison supply and, party allocation of the aas this court to review and titioned set aside contract, to the resale can oversee the order. The the commission’s California controversy rates. The is confined to joined petition. has commission conflicting claims energy Edison markets electric cen- the wholesale rate ulate as- Colton southern tral and California. It mar- by California and serted Federal outside state. kets Power Commission. operates a and number of steam owns Federal Commission contends generating hydroelectric stations 201(b) that under it has § exclusive au- the state. within thority to rates of all wholesale generat- purchases energy power. also Edison of interstate Edison con- Hoover, out-of-state Davis and that the extension ed tends Dams on the to Colton Parker Colorado River. to the rate would lation en- finding strongly power. Edi- This over such This issue and the contested. trol power generated also contends son to whether factual actually issue as Hoover Dam not fall at Hoover does under we do § reaches Colton not decide. Canyon Project Act, purposes decision, the Boulder our since we as- For seq., applies, § 617 et 43 U.S.C. and that both issues to be determined in fa- sume provisions under that act vor Federal Power Power Commission is excluded from con- Colton. specifically report provides page That also 48: matter croach regulation by under § left to “The revision has also removed together (b) 201(a) and as read every encroachment the author- Public Utilities Commission ity of the states. The bill revised Electric Attleboro Steam & impower only over those matters which can- opposing present These contentions effectively be controlled before issue us. states. The limitation on the Fed- purpose seem to us to tended that ulate tionally permissible under the commerce clause. where such Legislative states 201(a) make regulation should continue to clear the intent and judicial histories (b). It was in constitu *4 reg vent the eral tion in this ity over state matters. in each “The rate-making powers of Commission are confined to those ^[*****] Power Commission’s section in an effort to expansion regard of federal author- has been inserted jurisdic- pre- wholesale 201(a) (b) Passage was neces- transactions which the Su- of § preme Court held in in the Attleboro the decision Utilities sitated Commission v. regulatory Attleboro Steam & void was in 1927. A case (273 Electric Co. U.S. 83 [47 S.Ct. it was which that decision created 294, 549]) beyond L.Ed. Congress That case necessary fill. that reach of the states.” attempt Is- Rhode of the concerned the at Supreme rate recog- land Commission Court also has 201(a) (b) nized that producing has such a local which application. Light limited In Island border to Connecticut the Rhode at Company and Power v. Federal Power Company in Massa- for resale Attleboro Commission, 1945, 515, 524, at recognized that, al- The court chusetts. 749, 753, 1150, 89 L.Ed. though Island and Massachu- Rhode both refers earlier decision in charged, interest the rate had an setts Jersey Light Central Power and Com- essentially in con- their interests pany v. Federal 1943, In this situation the court held flict. 61, 87 L.Ed. nor Rhode Island Massachu- that neither language: in this question the rate in could setts ‘primary purpose’ “We held that the clause; violating the commerce without of the 1935 amendments to the Pow- regulation could be attained that give er Act was to the Power Com- congressional through action. Since mission control of sales of Congress acted, regulatory had not void across state lines which had been gap resulted. or beyond held to be the control of the (b) 201(a) was intended That § export state in Public Utilities fill go than to the “Attle- further Commission Attleboro Steam & legislative gap” his- clear boro Electric 273 U.S. 83 [47 S.Ct. Report tory. 74th Con- Senate 294, 71 L.Ed. 549].” Session, p. part: gress, First determining the extent of the In * * * (a) declares “Subsection by Attleboro, latory created void how- policy that extend consequent scope ever, (and the of fed- matters which to those authority) holding we must take the eral regulated by the States cannot would have understood as- assist the States exer- Phillips date. of that Petroleum as- regulatory powers, Wisconsin, Company of their cise impair powers 794, 800, diminish the or stated, dealing Supreme commission.” State problem Company, the Natural Gas Natural under Gas similar Act: The court stated, Attleboro page 87, 273 U.S. at gap is well settled “But it S.Ct. at 295 : thought exist to is that referred “ * * * controlling Act was the Natural the time presented passed, present and the is whether case sub- comes is not affected within the rule Pennsylvania sequent this Court decisions Gas Co. case or the Kansas have somewhat Gas Co. which loosened case which Attleboro constitutional restrictions state relies.” affecting activities In both eases, Attleboro, as in conflicting merce, in the absence of there was continuous transmission regulation.” selling across state line with the company doing Federal Power business Commission contends with customers on both holding sides of line. Attleboro was founded sending (Attleboro) the distinction wholesale between receiving (Pennsylvania power; Gas) and retail sales of interstate (Kansas Gas) sought holding both impose under that *5 upon ability could bear selling the interstate at wholesale must the company to serve fall in violation of customers in the commerce the other state. The clause. interstate conflict of interest was actual in Kansas while Gas lay emphasis up- While court did only potential Pennsylvania Gas and distinction, on this the issue is not so Attleboro, but in all three a multi-state simple may question in its solution. The particular concern with a transaction posed be thus: Under Attleboro can it setting was essential to the factual of the regula- be said that in absence of federal case. go tion this to Colton would have sale to Pennsylvania In Gas the were re- unregulated sales merely California be- transmitting tail company. wholesale; in the cause it was face In Kansas Gas the sales were at whole- only fact that California is the distributing companies sale to in the re- having any concern it? Or it with ceiving state. may asked: Under be Attleboro Pennsylvania attributed determination Con- In itGas was held that through gress, regulation its failure to this in absence of federal go unregu- sale, that such should transmitting at which the subject regulation lated? at retail were consuming state, to wholesale and references retail since such retail amounting sales, distribution, must read in to local in Attleboro context. essentially case, upon one side relied Penn- were local in character. sylvania Company reg- v. Public Gas Service In Kansas Gas the court held the 64 ulation both states to be a direct bur- 434; upon the other relied State on den interstate commerce and that distributing ex rel. of Missouri Barrett v. delivery Kansas sale and jurisdictional language pretation given 3. The of the Nat- tbe two Acts purpose Act and the ural Power Act is Gas es- of the fact the same sentially clearly appears legislative history the same. The Natural Act express does not contain the admonition of both with Acts their constant reference Pennsylvania Gas, intended federal Kansas Gas and tion “to extend to those matters Attleboro. F. C. v. Arizona P. Edison regulation by Cir., 1952, which are not 194 F.2d However, legislative history States.” Court has For of the Nat presence express Act, H.R.Rep. held that language of the ural Gas see Cong., in one and its absence from the 75th 1st Sess. parallel other does not affect the inter- case, lack, part in this inseparable pañíes “an already conflict of interest not commerce— in interstate transaction regulation feel, is, decisive. to federal we essentially in char- national not local but * * thing say more where It is one acter impact aof than one state feel the will Attleboro, cases, In those two energy, being there a multi-state concern retail, sales at question and conflict- since sales under these cir- at wholesale charged, ing state interests regulation the rate essentially national cumstances remain ap- upon the pear its face would quite rather than thing another local. It is essentially If it was national. say, as does Federal Power clause, escape Commission, that all sales at wholesale notwithstanding necessary show that essentially national, irrespective interest, the local character the national complete part lack of interest prevail. cir- It was under these should other state. determining factor cumstances Attleboro, say it, dichotomy as we read does not be- or national local impact this. The multi-state of the question inter- whether the came the clearly point- ulation there in retail. at wholesale or sales were states, page ed The court out. bar, however, the sale case at In the page 47 S.Ct. at 296: from which the interstate transmission “Furthermore, if Rhode Island (cid:127)springs already under federal control place could a direct burden through sale of the Narragan- interstate business Metropolitan Water District and direct this would re- sett participation Edi- the resale to (cid:127) n son. cus- in indirect benefit to the sult Any *6 conceivable conflict of interest Narragansett Com- of tomers pany among Arizona, Nevada and California Island, Massachu- Rhode in respect operation with of Colorado parity reasoning, could, by setts of plants River and the allocation of rates on such reduce the totally subject from them is thus to in to benefit cus- order business regulation through federal the United Company of Attleboro tomers genera- position (cid:127)States’ as of lessor have, State, in the in who would Hoover, tors at Parker and Davis.4 The aggregate, in the inter- an interest possibility other of con- multi-state to that of the rate correlative state cern with the Edison-Colton sale would Narragansett customers upon seem to rest Nevada’s to desire Plain- in Rhode Island. protect Edison’s customers in that state paramount however, ly, inter- through securing for them the bene- rate interstate business carried est in the profitable rate fit which a to Colton would companies the two is not on between permit. possibility This nullified State, but is essen- local to either that Edison’s the fact sales are all with- tially national character. in California. Nevada has no resident regu- therefore not to rate is protect. to customers While this situa- by either of the two lation States might change to guise protection to their re- in the begin operate public Edison to aas interests; but, spective local if such utility Nevada, Edison has never so regulation required operated past present and has no pow- the exercise attained expand beyond plans to its sales the bor- Congress.” er vested portion southern ders of Cali- pure speculation fornia. It would be does stand isolation Attleboro power predict problem it will of state serve Nevada When it was future. ulate interstate commerce. 4. See 26 229-230 F.P.C. by Congress, down, ain the essen- but the last established handed it was

long bearing upon immunity tial commer- series of cases problem. cial con- from the direct intercourse respect trol of with States commencing Attleboro, Prior with subjects embraced within Cooley Port of Board of Wardens grant which are of such a nature How.) (12 Philadelphia, 1851, regulated all, that, to demand if at Supreme L.Ed. 996 the regulation prescribed their should be regu- had dealt with the matter single authority. It has re- practical point very lation from a peatedly been declared this court Regulation might view. at first subjects that as to those which re- clearly appear very blush di- have a general quire system uniformity concededly impact rect on what was regulation Congress in ab- terstate commerce had been held matters, is exclusive. In ad- regulation sence be within state, mitting diversity of treatment regulatory power according special require- although the reason that some conditions, ments of local may the States clearly Congress required tion was had respective ju- act within their failed to act. These were cases which risdictions until sees fit to local, the concern was need act; and, act, when does lation was due to local conditions and the exercise of its over- the service was not such as demand legisla- conflicting rides all uniformity among tion.” states, was, rather, permit such as to further, pages 402-403, page regulation. diversity of a Under these 741 of 33 S.Ct.: circumstances, the burden merce which the state “But within these limitations there stituted was held to be an indirect one necessarily States, remains pow- within the area in which state Congress acts, range until a wide concurrently er to existed permissible pow- for the exercise of until such time Con- appropriate er to their territorial gress occupied the field. jurisdiction although interstate com- extends, merce be affected. illustrated, example, by This is *7 to those matters of a local nature language in The Minnesota Rate Cases impossible toas which it is to de- (Simpson Shepard), 1912, v. grant, rive from the constitutional 57 L.Ed. On they go an intention that should un- page 396, page S.Ct., 739 of 33 the pending controlled Federal interven- points out the distinction between Thus, tion. there are certain sub- impact of a the direct and an indirect jects having the most obvious and burden: direct relation to interestate com- imposes “If a state enactment a di- merce, nevertheless, with the rect burden interstate com- acquiscence Congress, have been regardless merce, it must fall by legislation controlled state legislation. point Federal The foundation of the the Government objection an is such gress not that Con- necessity they because of the acted, has but that the State unregulated should not remain directly restrained has that which that adapted their should be' the absence of Federal varying exigencies; to local free.” be should regulation by absence of hence the goes state, page on to The court at Congress in such matters has not page on 33 S.Ct.: at imported should there be no re- States, grant “The the Constitution striction but rather that force, is, supply to its own without action should continue needed! by Congress Federal cases relied decide rules until should *** ju- their supersede sustain Where them. distinguishable local risdiction peculiarly one are belongs they possible concern, all conflict nature and from its involved among without terest or more the State two the class with which regulatory making in a appropriately rea- deals needs, position provision it local to resolve such conflicts sonable trolling regarded equitable un- of ei- as left to the distribution cannot power power supply be- ther individuals or the restrained will of charges Congress among acted, al- Il- cause has not states concerned. though may Company a relation linois Central such Natural Gas it have Co., as to be to interstate commerce Illinois Public Service pow- within the reach of the was L.Ed. Congress gas company, case, must a case in In such which the local er. judge necessity exemption pub- of Feder- which claimed from state jurisdiction, al utilities action.” lic commission wholly subsidiary of an owned inter- judicial prior this Can be said that it pipeline company. state Its function need for concern the local system this interstate receive been tion of interstate commerce has border, pres- state reduce Attleboro; and that laid rest transport it local distribu- sure opinion for all substituted there is regarded order of the state theretofore tors. issue was an the considerations irrespective requiring multi- local whole- commission as relevant least) area, (in power facilities to serve a concern saler construct distributing company present- simple test of mechanical wholesale- local gas. ly supplied be said natural or-retail? Can it with Attleboro? so We commission was held without would have construed power to an order because think not.5 issue such 1511])’ aware of the Su- 57 L.Ed. was well [33 Cooley interpretation preme [Board “In of Wardens Court’s Philadelphia (12 How. of] illustrated Senator Port clause merce 'Wheeler’s ity 996]) the Court said: remarks on the constitutional- [13 “ subjects Holding part ‘Whatever (over among of consti- several “The criterion bill. He stated: national, States) tutionality existence of in their nature of this bill is the system plan power (U. v. D. H. uniform & admit of one the Federal 836]). regulation may justly be said [29 S.Ct. 3CC require given subject a nature as exclusive over a of such The Federal *8 Congress.’ (An example legislation by may is the States concurrent with be transportation gas exclusive, depending natural on the interstate or it by regulated. regulated Congress, but to be neverthe- nature Kansas, etc., (95 held in Oklahoma U.S. less “In Hall v. DeCuir (221 547]), U.S. 229 [31 said: Gas Co. [24 the Court L.Ed. < n !* * rpjle * gtates 716]), regulate, as a free State concern, ulation.) domestic the instru- matter ments of wholly with- “Certain features the business of commerce situated utility holding subsidiary operat- jurisdictions which own over the ing in their companies control, they governmental would to be of seem this exclusive have employed foreign type, and since business is except in- or latter an interstate when nature, they only doubt Federal commerce. As terstate exists, regulation power really State, and the is their used power may properly purposes as to whether that exclu- assumed one all many sive, whether, acts in instru- until refer- the State local, foreign commerce are or interstate rela- ments the the to their ence tions. * * * (Examples power exerted and to is to be found regulation that such instruments are em- extent railroads the States. Cases, ployed in commerce.” Minnesota Rate See U.S. proposed appellant’s "the I, extension of fa- court fused Part the Pow- § intimately deciding cilities is so er associated Act with that states § commerce, its hy- so- affect would were forbidden moving volume and distri- power into the state droelectric resale in interstate among states, commerce, bution as to be within por- even if the source some Congressional power power originated tion of the in fed- materially erally hydroelectric which affect projects. matters licensed commerce, sweeping terstate as well as the com- The statements 498, 509, merce authority itself.” 314 201 left no § the states- Ct. over interstate- sales for resale must be read within the factual framework of In Federal Power Commission v. East dispute the case. The was between the Company, 1950, Ohio Gas public utilities commission and the 70 S.Ct. ' Federal Power Commission which the Federal Power Commission right to control the rates at which a sought Cal- was company marketing ifornia electric most also, Gas, subsidiary as in Illinois power of its in that state sold pipeline company an interstate distribut Navy Department ing gas and a Nevada wholly within one state. Juris county again use Nevada. Once diction over wholesale rates was not in present multistate concern gas was since issue since East direct to Ohio sold regulatory both Although Nevada and California consumers. retail sales agencies protecting were stake, interested were at Federal Power Commis Similarly, their own require citizens. feder- sion East Ohio government al keeping keep was reports concerned in accounts and submit was possible by finding rates at upheld the lowest level for that East Ohio’s fa Navy Indeed, dispute pre- use. exemp were arose cilities not entitled to the cisely granted company attempted because the facilities used for local dis require Navy they and the part tribution Nevada coun- since of an ty to large adhere to new high-pressure chain of schedule of in- granted by creased rates nationally lines had to be California control “ commission. preserve ‘equality op led in order to portunity among and treatment the vari If the (that court’s broad declarations ” ous communities and States concerned.’ the entire field of interstate wholesale 464, 471, 266, 270, transactions of electric quoting Gas, supra, Kansas placed under the Federal Power Commis- 310, 44 544.6 jurisdiction) sion’s are to be held con- Finally, in United trolling States v. Public apart from their factual con- California, 1953, Utilities Commission of text, govern 97 L.Ed. 1020 the rates of sales between two com- foregoing (as 6. Both of the eases is also East Ohio Gas focus Jersey true of Light Central and Connecticut on federal control under 15 U.S.C. Power, infra) & 717(b) discussed “transportation deal with gas of natural Federal Power Commission opposed in interstate commerce” as distribution, matters other than the rates at which the “local of natural sold, matters over which the to the facilities used for such distribu- *9 scope Any of federal energy broader tion.” transmission of across specific of automatically federal interests state lines has multistate statutory provisions impact respect and involved. The to allocation of en- Compa- ergy in Illinois supply, Natural particular object ny dealt with the extension effectively of facili- of federal concern is handled transportation ties of natural in this case the control the United parties heavily upon explicit and relied ex- States exercises over which re- pression power of federal concern with that Hoover, sub- ceive from Parker and ject contained in 15 U.S.C. § 717f. 314 Davis Dams. 498, 505-50S, U.S. In operated wholly engaged busi- lines located whol- pañíes intrastate transmission ly Jersey, other within but delivered sub- New and of concern to ness power they stantial the Public Service For occur. the one than in which n example, Company which, turn, some delivered case, were Colton in this company energy of sumption to a New con- it de- York which have some unused community company nearby York. such New The sired to sell to argued arrangements by which distribution as San Bernardino for energy passed York did not consumers, to New make Power Com- local the Federal public utility ait transmis- because its rate of mission could to set the intervene power regardless of to Public sion Company Service fact that that sale of intrastate was an transaction. two affected communities would court, interpreting The Tby said: Subsequent § resales San the rate. River- Bernardino Riverside pri- purpose “The act of this was equally side to Pomona (cid:127) would marily regulation although any inter- to federal charges energy. If the interstate lacking. No case state interest would be intervening might pur- companies yet presented has set circum- such producers chase from state of stances to do not feel that the court. We production, control, free of federal go lan- it would so as to extend the far prior cost be fixed guage of Public Utilities Commission of cidence of (cid:127)California to the circumstances describ- federal rate sub- control would be above, especially in the of its ed stantially impaired, if not rendered (cid:127) Light opinion in & Power Connecticut 61, 71-72, futile.” 319 U.S. n Co.,discussed infra. 953, 959. Thus, cases, in each of these well as Light, In Connecticut was triad, in the Attleboro an whether Power the Federal prominent flict of interest was on the right accounting had the conflict, facts. When this which was the practices whose facilities (cid:127)essence of the national character pow- used for local distribution of stake, coupled with the power energy er. included electric supervision lack of the purchased from another Connecticut con- (cid:127)conflict, the need for federal interven- from cern but transmitted Massachu- tion, spelled out clear. company’s setts. One of the customers municipality was a which resold a mi- significance presence n some form of federal control where export part purchase for nute of its from the state. Federal control the inter- power multistate concern with a trans potential conflict of interest action for resale in interstate commerce of Massachusetts transmission may contrasting exists be seen in the already established, Connecticut was Jersey Light cases Power Central & however, dispute and in was the neces- v.Co. Commission, 1943, extending sity it further encom- company’s pass the remainder Light Connecticut & Power Co. v. business, aspect lacked vital Federal Power Commission, 1945, 324 concern. The multistate court distin- 89 L.Ed. 1150 Jersey by stating: guished Central (cases dealing not regulation, with rate subjects but with “Here, however, author- com the federal jurisdiction). Jersey mission ity price energy fix Central the sale coming one pany the issues was whether the com Massachusetts in in- public utility awas pre- within the commerce attaches and defi terstate nition sumably Federal Power Act or at least has been an operator owner or pursuant Jersey of facilities exercised holding energy transmission of electric in inter Central before *10 state commerce. company. peti- The What owned reaches this and 794 considering re- while peatedly the Act. It was tioner or fails to do does legislative proceed- stated in the after incidence of federal ings Attleboro, way and which the cases in no frustrate

lation and 749, followed, separat- 515, 524, it ing had line 65 drawn it.” 324 U.S. S.Ct. au- state constitutional and 753. thority between sales “wholesale” We that a state conclude “resale,” hand, for one “lo- on the regulate resale an interstate sale cal” sales “con- at “retail” original where, here, in as sumer,” language on The other.3 is under federal terstate transmission 201(b) naturally Section reads in terms control and no other state is affected stating distinction, way by regulation subsequent apply is to Act to sales “at wholesale that the therefore find transaction. We (defined interstate commerce” as “sales au Federal has no Power Commission resale”), apply and is “to regulate thority 201(b) under other sale.” City of rate at Edison sells Supreme Court has described Colton. holding predecessors Attleboro Accordingly, the order of the Federal in terms of be- the same fiat distinction hereby Power aside. set tween sales for resale sales for Judge BROWNING, (dissent- Circuit sumption,4 and has said that so ing). enacting understood them in states, Public States v. As the Court the Federal Pow- Act. United said, by Congress passed explicitly er Utilities Commission Court Act was “Congress “regulatory interpreted that gap” case [Attle- to fill the created prohibiting state as control Attleboro boro] Utilities Commission Public interstate commerce rates in In Attleboro the wholesale Steam & Electric Co.1 Supreme interpreted resale, the Federal Pow- and so armed its earlier de- precisely sustaining er Commission with cisions 5 furnishing gas power.” local “the commerce, but consumers” in uniformly read Sec- courts have denying power to sales granting 201(b) the federal Com- quantities, not to con- “in wholesale jurisdiction over all mission wholesales distributing sumers, companies commerce, leaving control 2 consumers.” for resale to to the states.6 Cases retail concededly reading Act, any event, the Natural Gas under This, in was the here, effect. applicable are same placed Attleboro Co., 464, 10, 70 294, U.S. 470 n. 83, 338 71 L.Ed. 549 U.S. 47 S.Ct. 1. 273 266, (1950); 94 L.Ed. 268 Panhan (1927). S.Ct. Pipe Serv. Line Co. v. Public dle E. 83-89, 47 S.Ct. at 296. 2. U.S. at 273 507, Comm’n, 514, U.S. 332 (1947). 190, 128 also See following examples ref of these 3. The Light C., Co. v. F. 131 Elec. P. Hartford erences, descriptions and also 1942). 953, (2d Cir. 964 F.2d statutory grant of in the same Hearings 5423, on House H.R. terms: Comm’n, v. Public Util. States 5. United Comm, Foreign Com Interstate 714, 295, 308, 706, 97 Cong., (1935), pp. merce, 1st 74th Sess. (1953). also See Connecticut L.Ed. 1020 518, ff., 435, 384, 402, 497, 498, 96, 421 Light C., P. v. F. & Power Co. 324 1679, 1639, 2143, 2154; ff., 576, 521 749, 526, 515, 89 1150 S.Ct. 65 Cong., Sess., pp. Rep. No. 1st 74th (1945). P. C. East Ohio Gas Cf. F. Cong., 48; H.Rep. 1st 74th 464, 471-473, S.Ct. 70 26; pp. 7, Cong.Rec., Sess., 74th 79 266, 94 L.Ed. 268 Cong., (1935), pp. 1st Sess. Comm’n, States v. Util. United 4. United Comm’n, 97 L. 73 v. Public Util. States C., (1953); 295, 303, Wisconsin v. F. P. L. Ed. U.S.App.D.C. (1953); F.2d P. F. C. v. East Ohio Ed.

795 including in Panhandle intrastate and inter- Supreme said As state-for-consumption Pipe Public Service sales.”10 “To Line v.Co. Eastern statute conceive a now as benchmark of line “The power, complete. cut Commission’s or an affirmation of was thus clear and cleanly sharply sales state between interstate sales and resale, consumptive speculate be to direct sales about a resale and congressional purpose exceptions in either made which there uses. No is uses, quantities support.”11 particular category for 7 indisputable that It is or otherwise.” strangle Of course “literalness 12 commerce at retail sales meaning,” and statute be read regulation by were made purpose. fixing itsof But beyond jurisdiction of state and are clear boundary certain between fed- though even Commission the federal jurisdiction eral state might conflicting interests late power, sales so that its similarly It seems clear volved.8 precise fought location need not be out grant jurisdic- unqualified of exclusive litigation, case case in is in itself an in interstate tion over at wholesale important objective legislative policy. in the Commis- was vested As has parallel provi- been said of the sion. “Congress sions Act, Natural Gas undertook to a defined class sharp simple division This natural distribution, without ulatory was not conditioned necessity, where acted, has not 201(a) fed- of Section declaration drawing precise line between state only to extend eral “to power by and federal litigation which are not matters particular cases.”13 general dec- States.” This policy would be “in relevant laration hold that sales of To at whole- ambiguity resolving any or indefinite- sale in interstate commerce sub- specific provisions” ness ject nullify spe- Act, a clear “cannot but it they unless an involve “interstate con- jurisdiction.”9 grant of Before cific Congress already subject of interest not flict “spoken pro- it was regulation,” create affairs, tecting of local problems.14 troublesome Since an exist- Wisconsin-Michigan (1952); 9. Connecticut n. 1 Power Light & v. F. Co. P. C., (7th P. 472 Co. v. F. 197 F.2d Cir. 527, C., 749, 754, 515, 324 U.S. 65 S.Ct. 1952). (1945). 89 L.Ed. 1150 See also United Comm’n, v. Public Util. States 345 U.S. Pipe 7. Co. v. Panhandle E. Line Public 295, 310, 706, 73 S.Ct. 97 L.Ed. 1020 Comm’n, 507, 517, 332 Serv. U.S. 68 (1953). 195, 190, (1947). 92 128 Ct. L.Ed. See Phillips Wisconsin, Petroleum Co. v. also Comm’n, 10. States United v. Util. 672, 682-684, 794, 347 U.S. 74 S.Ct. 98 295, 309, 706, 714, 73 345 S.Ct. 97 (1954); Pipe L.Ed. 1035 Panhandle E. (1953). L.Ed. 1020 Michigan Comm’n, Line Co. v. Pub. Serv. 329, 334, 777, 311, U.S. at 73 341 U.S. 71 S.Ct. L. 345 S.Ct. 95 at 715. (1951); Ed. 993 Illinois Natural Gas Co. Porter, 39, Junk Co. Utah 328 U.S. Comm’n, v. Central Illinois Pub. Serv. 892, 44, 889, 66 S.Ct. 90 L.Ed. 1071 506-508, 498, 384, 62 314 U.S. 86 S.Ct. (1946). (1940). 371 L.Ed. 13. Illinois Natural Gas Co. Central Pipe Michigan E. 8. Panhandle Line Co. v. Comm’n, 498, Pub. Illinois Serv. 314 U.S. Comm’n, 329, Pub. Serv. 71 506, 507-508, 384, 3S7, 62 S.Ct. 86 L.Ed. (1951); 95 L.Ed. Pan- (1940). also See Wisconsin v. F. Pipe handle Line Co. v. E. Public Serv. C., U.S.App.D.C. P. 201 F.2d Comm’n, (1952). 183, 185 n. 1 (1947). This, as the court out, points Pennsylvania was true in Illinois Natural 14. In Gas Co. v. Central Comm’n, Comm’n, Co. v. Public Serv. Pub. Illinois Serv. 384, 385, L.Ed. 434 *12 796 dependent, regulatory- over Colton contract be

ing conflict between jurisdic- Does sales? agencies prerequisite continuance of these a is not requirement al- Commission,15 conflict it not is federal tion of the poten- jurisdiction in- apply existing (rather so over why federal an than clear transmission; to- or is it limited terstate tial) interests should conflict of state existing ?16 And if no Further, sales clear wheth- required. is not it is of interest the conflict states is er the extent of conflict of interest between left, jurisdiction at- volved, would federal relevant: is the interstate sale does, unregulated if sold Edison Colton contract tach the state concerned if a small amount Nevada customer one undertake to it? power; not, would if much more how it If is desirable that if required difference Would make a ? like be left contracts that Colton other Edison in sold state, modifying the task Sec- ato were traceable than California also 201(b) accomplish purpose tion that generator the first federal so Congress. one could agency of feder- an was controlled jurisdictional move the line ob- without government? time al If at some future scuring it; Congress require could state- jurisdiction to attach to by-state regulatory assumption pow- re- sales Colton contract sponsibility before federal controls were other than Cali- er Edison jurisdiction fornia, withdrawn.17 the federal Comm’n, 498, suggests (1940), 314 Serv. the Court (1942), and 86 L.Ed. 371 F. P. v. extends to Commission’s C. Co., gas following East Ohio Gas 338 U.S. resale sales (1950), suggests 94 L.Ed. 268 same S.Ct. for resale sales though jurisdiction. much, it is difficult the Commission’s to find a within understanding coverage such a basis for distinction the statute same Phillips reflected in Petro- itself. the Act is Wisconsin, v. leum Co. comparable Supreme- 17. In a situation the 794, 799, 98 L.Ed. 1035 n. jurisdictional adhered to the test (1954), where the refers the Natural Gas Act [F.P.C. v. East of the General Solicitor of the comment 266,. Ohio Association of Railroad and National Util- (1950) ] L.Ed. 268 purpose then Commissioners ities exception ultimately and limited changes enacted clear ini certain included * * * “any person engaged in favor of Act was “to make certain that in interstate the sale re- apply will to all intercom- the bill gas sale, per- of natural received gas such pany of natural at whole- person another within or though son sale, be from one the sale even boundary aof State if all the nat- company to another which will gas ultimately so received is corporation ural another before the resell to ** * pro- within public.” such State finally sumed Hear- * * * Comm, the rates vided persons such ings House Interstate before * ** Eoreign Commerce on H.R. * * * by a State commission. A Cong., 1st Sess. 75th from such State certification commission Only sought had California Commission that rates involved United States regulatory State Commission has such Comm’n, Util. * * * jurisdiction [such] exercising such shall this, po- Nevada withheld case constitute conclusive evidence such regulatory jurisdiction. claim to tential ulatory power jurisdiction.” 717(c). S.Rep. of Illinois Nat- C.A. See 16. The Court’s discussion 83d Cong., 2d Sess. Gas Co. Central Illinois Pub. tural