CKS-4 eral agencies. For each agency the report will first describe the agency's statutory powers that arguably might fall within the four types of actions that would be subject to the bill's procompetitive standards. Then it will list statutory provisions that currently may require the agency to consider competitive concerns when exercising its powers. These provisions often provide no more than that the agency exercise its powers in the "public interest," but court opinions have frequently interpreted these provisions to require agencies in varying degrees to consider potential anticompetitive effects in determining the means of exercising their statutory powers. These court opinions will be the next item discussed with regard to each agency. It should be noted that the leading opinions that interpret various agencies' statutory powers are often relied upon in decisions concerning agencies other than those involved in the leading cases. Therefore, an absence of cases interpreting a particular agency's statute does not necessarily mean that judicial guidance is unavailable to that agency; an opinion interpreting a similar statute enforced by another agency may have precedential value in interpreting the first statute. Finally, after discussing the current legal requirements of each agency to consider the competitive impact of its actions, this report will compare those requirements with the procompetitive standards that would be imposed by S. 1291. In Northern Natural Gas Company v. Federal Power Commission, 399 F.2d 953, 959-961 (D.C. Cir. 1968), the court discussed the basis for requiring Federal agencies to consider antitrust policies: CRS-5 [We think it helpful to examine the overall relationship between antitrust law and regulatory agencies. Despite a continuing debate, it appears that the basic goal of direct governmental regulation through administrative bodies and the goal of indirect governmental regulation in the form of antitrust law is the same to achieve the most efficient allocation of resources possible. For instance, whether a regulatory body is dictating the selling price or that price is determined by a market free from unreasonable restraints of trade, the desired result is to establish a selling price which covers costs plus a reasonable rate of return on capital, thereby avoiding monopoly profits. Another example of their common purpose is that both types of regulation seek to establish an atmosphere which will stimulate innovations for better service at a lower cost. This analysis suggests that the two forms of regulation complement each other. This theory of complementary regulation appears to be borne out by the Supreme Court cases holding that regulated industries must, to some degree at least, accomodate the antitrust laws. [citations omitted.] Moreover, the Court has held that even where there are specific statutory exemptions for regulated industries from the antitrust laws, such exemptions are to be very narrowly construed. [citations omitted.] The complementary regulation theory is also supported by congressional directives requiring certain regulatory agencies to enforce portions of the antitrust laws... Congress has also explicitly advised certain agencies to consider basic issues of competition while regulating the industries within their jurisdictions. For other agencies the obligation to act in favor of "public convenience and necessity" has been construed as implying a duty to recognize and weigh traditional antitrust concepts.... This is not to suggest, however, that regulatory agencies have jurisdiction to determine violations of the antitrust laws. [citations omitted.] Nor are the agencies strictly bound by the dictates of these laws, for they can and do approve actions which violate antitrust policies where other economic, social and political considerations are found to be of overriding importance. In short, the antitrust laws are merely another tool which a regulatory agency employs to a greater or lesser degree to give "understandable content to the broad statutory concept of the 'public interest,'" [citation omitted.] But... competitive concerns are an important element of the "public interest". CRS-6 Federal Energy Regulatory Commission The Federal Energy Regulatory Commission, an independent regulatory commission within the Department of Energy (42 U.S.C. $7171(a)), has been granted authority formerly vested in the Federal Power Commission to administer various provisions of the Federal Power Act and the Natural Gas Act. 42 U.S.C. $7172(a). It has also been granted authority formerly vested in the Interstate Commerce Commission under the Interstate Commerce Act to "establish[] rates or charges for the transportation of oil by pipeline or establish[] the valuation of any such pipeline." 42 U.S.C. $7172(b). 1. Statutory powers that arguably would be subject to the bill's procompetitive standards A. Federal Power Act (1) "To issue licenses... for the purpose of constructing, operating, and maintaining dams, water conduits, reservoirs, power houses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power...." 16 U.S.C. $797(e). (2) To waive "conditions, provisions, and requirements of this subchapter" in issuing licenses in specified circumstances. 16 U.S.C. $803(i). (3) "[T]o regulate and control so much of the services rendered, and of the rates and charges for payments there for as constitute interstate or foreign commerce...." 16 U.S.C. $813. (4) To approve contracts by licensees "for the sale and delivery of power for periods extending beyond the date of termination of the license." 16 U.S.C. $815. (5) To "direct a public utility... to establish physical connection of its transmission facilities with the facilities of one or more other persons engaged in the transmission or sale of electric energy, to CKS-7 ... The Com sell energy to or exchange energy with such persons. (6) "[T]o require by order such temporary connections of facilities and such generation, delivery, interchange, or transmission of electric energy as will best meet the emergency [the Commission determines to exist by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy. . .) and serve the public interest.... [T]he Commission . may prescribe by supplemental order such terms as it finds to be just and reasonable, including the compensation or reimbursement which should be paid to or by any such party." 16 U.S.C. $824a(c). (7) To prescribe rules that "require electric utilities to offer to (1) sell electric energy to qualifying cogeneration facilities and qualifying small power production facilities and (2) purchase electric energy from such facilities." 16 U.S.C. $824a-3. (8) To approve any specified "proposed disposition, consolidation, acquisition, or control" of facilities by public utilities. 16 U.S.C. $824b(a). (9) To by order authorize a public utility to "issue any security, or assume any obligation or liability as guarantor, indorser, surety, or otherwise in respect of any security of another person...." 16 U.S.C. $824c (a). (10) To "determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force....' 16 U.S.C. $824e (a). (11) To "determine the proper, adequate, or sufficient service to be furnished...." 16 U.S.c. $824f. (12) To authorize "any person to hold the position of officer or director of more than one public utility or to hold the position of officer or director of a public utility and the position of officer or director of any bank, trust company, banking association, or firm that is authorized by law to underwrite or participate in the marketing of securities of a public utility, or officer or director of any company supplying electrical equipment to such public utility... 16 U.S.C. $825d (b). (13) To "determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force... 15 U.S.C. $717d. (14) To "direct a natural gas company to... establish physical connection of its transportation facilities with the facilities of, and sell natural gas to, any person or municipality engaged or legally authorized to engage in the local distribution of natural or artificial gas to the public. . . ." 15 U.S.C. $717f(a). (15) To authorize a natural-gas company to "abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities...." 15 U.S.C. $717f(b). (16) To authorize a "natural-gas company or person which will be a natural gas company upon completion of any proposed construction or extension [to] engage in the transportation or sale of natural gas subject to the jurisdiction of the Commission, or undertake the construction or extension of any facilities therefor, or acquire or operate any facility or extensions thereof...." 15 U.S.C. §717f(c). (17) To approve a transfer of contractual interests to receive natural gas "(i) to any interstate pipeline; (ii) to any local distribution company served by an interstate pipeline; and (iii) to any person served by an interstate pipeline for a high priority use by such person." 15 U.S.C. $717y. (18) To "establish[] rates or charges for the transportation of oil by pipeline or establish[] the valuation of any such pipeline." II. Statutes that may require consideration of competitive concerns A. Federal Power Act (1) "Combinations, agreements, arrangements, or understandings, express or implied, to limit the output of electical energy, to restrain trade, or to fix, maintain, or increase prices for electrical energy or service are hereby prohibited." 16 U.S.C. $803(h). (2) The Commission may exercise statutory power (2) "as it may deem to be in the public interest." 16 U.S.c. $803(i). |