Exxon Corp v. FERC ( 2000 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2000 Decided March 24, 2000
No. 97-1092
Exxon Corporation, et al.,
Petitioners
v.
Federal Energy Regulatory Commission,
Respondent
Consolidated Edison Company of New York, Inc., et al.,
Intervenors
On Petition for Review of an Order of the
Federal Energy Regulatory Commission
Thomas J. Eastment argued the cause for petitioners.
With him on the briefs were Marc C. Johnson, Bruce A.
Connell, Jennifer S. Leete, Linda L. Geoghegan and Michael
L. Pate.
Timm L. Abendroth, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Jay L. Witkin, Solicitor, and Susan J. Court,
Special Counsel. John H. Conway, Deputy Solicitor, entered
an appearance.
Marc Richter, Harvey L. Reiter, Richard Arlen Rapp, Jr.,
James H. Byrd, L. Clifford Adams, Jr., Allen Weinberg,
Kenneth R. Carretta, John E. Holtzinger, Jr., Jacolyn A.
Simmons and Kevin M. Downey were on the brief for
intervenors. Kent K. Carter, Joel F. Zipp, Michael J. Fre-
muth, J. Paul Douglas and Mary L. Wright entered appear-
ances.
Before: Williams, Randolph and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Dissenting opinion filed by Circuit Judge Randolph.
Williams, Circuit Judge: This case arises out of the Feder-
al Energy Regulatory Commission's "unbundling" of inter-
state gas pipelines' sales and transportation service. As part
of that unbundling, parties with firm rights to buy natural gas
in the downstream areas served by Transcontinental Gas Pipe
Line Corporation ("Transco") were given the right to convert
their gas purchase entitlements into transportation service
rights. They evidently all did so, and are known as the "FT
conversion shippers." When Transco reached an unbundling
settlement with its customers, these conversion shippers
sought assurance that their rights to use of the pipeline
upstream would be sufficiently firm. FERC responded affir-
matively, insisting that Transco give the service a priority
that rendered it "essentially firm." Transcontinental Gas
Pipe Line Corp., 55 FERC p 61,446 at 62,345-46 (1991)
("Settlement Order").
Ranged against the conversion shippers are "Indicated
Shippers," led by Exxon, who are gas producers in Transco's
production areas. They contend that if the conversion ship-
pers are to enjoy firm transportation service in the produc-
tion areas, they should pay for it in the way that is predomi-
nant for firm transportation service, i.e., by a two-part
charge--first a reservation charge for the right to use the
service, and second a usage charge covering the costs of
actual usage.
Transco filed tariffs under s 4 of the Natural Gas Act, 15
U.S.C. s 717c, proposing such two-part rates, designating
them "firm-to-the-wellhead" or "FTW" rates. (Petitioners
note that this is technically a misnomer; the rates in fact
would go only as far as producers' gathering systems. But,
as have all the participants, we use the FTW label.) The
Commission rejected the FTW rates, Transcontinental Gas
Pipe Line Corp., 76 FERC p 61,021 ("Opinion No. 405"),
denied rehearing, 77 FERC p 61,270 (1996) ("Opinion No.
405-A"), and finally issued a further "Order on Rehearing
and Request for Clarification," 79 FERC p 71,205 (1997),
adhering to the rejection. The Indicated Shippers petition
for review.
The Indicated Shippers also attack prior decisions in which
the Commission rejected two-part FTW rates that Transco
had proposed under s 5 of the Act, 15 U.S.C. s 717d, Trans-
continental Gas Pipe Line Corp., 63 FERC p 61,194, rehear-
ing denied, 65 FERC p 61,023 (1993). We do not address
those decisions directly. In the s 4 cases, we find no rea-
soned decisionmaking to support the Commission's rejection
of Transco's filings. If on remand the Commission adheres to
that rejection and justifies it, the Indicated Shippers' ability
to secure relief under s 5 will probably be remote; if on
remand the Commission accepts the Indicated Shippers' posi-
tion under s 4, then of course they will need no relief under
s 5.
* * *
At stake are rates governing gas transportation on "later-
als" linking gas producers' gathering systems with Transco's
main pipelines. Transco was an early unbundler, reaching an
unbundling settlement with its customers in 1991. When
FERC reviewed the settlement, representatives of the FT
conversion shippers sought assurance of high priority for
their use of these laterals. (The service is dubbed "IT-feeder
service"; nominally interruptible, it feeds the conversion ship-
pers' entitlements to mainline capacity.) FERC agreed, or-
dering that
Transco's tariff should specifically set forth the capacity
priority of Rate Schedule IT feeder service, i.e., that such
service is not firm but that it has priority over any other
interruptible service regardless of the date of the service
agreement.
Settlement Order, 55 FERC at 62,377. As everyone under-
stood at the time, including FERC, this grant of priority
made Transco's IT-feeder service for the FT conversion
shippers "essentially firm." Id. at 62,346. But the Commis-
sion did not direct two-part rates for this "essentially firm"
service, and it has been subject to only a single volumetric
usage charge.
In 1992 the Commission adopted Order No. 636, extending
its restructuring of the gas industry. See Pipeline Service
Obligations and Revisions to Regulations Governing Self-
Implementing Transportation under Part 284 of the Com-
mission's Regulation of Natural Gas Pipelines after Partial
Wellhead Decontrol, FERC Stats. & Regs. p 30,939 (1992).
One of its goals was the creation of a "national gas market"
with "head-to-head, gas-on-gas competition where the firm
transportation rate structure is not a potentially distorting
factor in the competition among merchants for gas purchasers
at the wellhead and in the field." Id. at 30,434. To this end,
FERC ordered that when pipelines provide firm transporta-
tion with a two-part fee structure, all fixed costs are allocated
to the reservation charge so that the usage charge is based
only on variable costs. This new rate design was called
"straight fixed variable" ("SFV"). It replaced "modified fixed
variable" ("MFV") pricing, under which the usage charge for
any two-part rate included a portion of a pipeline's fixed
costs. See United Distribution Cos. v. FERC, 88 F.3d 1105,
1167-68 (D.C. Cir. 1996) (upholding FERC's abandonment of
modified fixed variable pricing); see also 18 CFR s 284.8(d).
With MFV the pipelines had varied in their allocation of fixed
costs to the usage charge, and "[t]he Commission believed the
MFV rate design distorted the unit delivered prices of gas,
and thereby hindered the development of an efficient national
market for gas." Municipal Defense Group v. FERC, 170
F.3d 197, 199 (D.C. Cir. 1999). With SFV the Commission
hoped "to promote competition at the natural gas wellhead by
increasing the transparency of natural gas pricing." Texaco
Inc. v. FERC, 148 F.3d 1091, 1094 (D.C. Cir. 1998).
Because conversion from MFV to SFV often contradicted
contracts between pipelines and purchasers, the Commission
could require SFV only by invoking its authority to modify
private contracts under the so-called "Mobile-Sierra doc-
trine." See Texaco Inc., 148 F.3d at 1096-97; see also
United Gas Pipe Line Co. v. Mobile Gas Corp., 350 U.S. 332 (1956); FPC v. Sierra Pacific Power Co., 350 U.S. 348 (1956).
Under Mobile-Sierra, FERC may modify a contract rate
provision if (but only if) the "public interest" so requires, a
standard understood by all to demand more of a showing by
FERC, in rejecting rates, than is needed to reject rates under
the "just and reasonable" standard of s 5. See Papago
Tribal Utility Auth. v. FERC, 723 F.2d 950, 953 (D.C. Cir.
1983); Northeast Utilities Service Co. v. FERC, 993 F.2d 937,
960 (1st Cir. 1993). In part because of FERC's insistence
that the MFV rate design will "distort gas market pricing to
the detriment of the 'integrated national gas sales market,' "
we have upheld FERC's abrogation of private contracts to
convert natural gas pricing to SFV. See Texaco, 148 F.3d at
1097. Nonetheless, in the s 5 proceeding alluded to at the
outset of the opinion, the Commission rejected Transco's
effort to establish a two-part SFV rate for the IT-feeder
service enjoyed by Transco's conversion shippers.
Following a Commission suggestion, Transco made a s 4
filing that proposed two-part SFV rates in the production
areas. An administrative law judge to whom the Commission
referred the matter rejected the rates on various grounds.
Transcontinental Gas Pipe Line Corp., 72 FERC p 63,003
(1995). Transco and Indicated Shippers filed exceptions with
the Commission, which in its decision dropped nearly every
aspect of the ALJ's analysis save the conclusion--that the
proposed rates were unjust and unreasonable. See Opinion
No. 405, 76 FERC p 61,021 (1996). The Commission began
by repudiating the ALJ's highly critical view of two-part rates
and SFV. First, "[a] reservation charge helps ration capaci-
ty, whether in the market area or in the production area."
Id. at 61,060. Second, rebutting the ALJ's belief that a two-
part rate with reserved capacity was an anticompetitive "ty-
ing" practice, it said there was nothing anticompetitive about
putting shippers to a choice regarding whether or not to
reserve capacity: "These are the types of choices that con-
sumers are constantly required to make in a competitive
marketplace." Id. Finally, any concerns regarding a tying
effect once the choice to reserve was made were "tempered"
by capacity holders' rights, established in Order No. 636, to
release their capacity entitlements and thereby at least in
part to offset the reservation costs. Id. at 61,061. In fact,
"this flexibility is enhanced on Transco's system by the right
of firm shippers to release capacity in segments in order to
tailor their capacity needs and alternatives to fit their needs."
Id. Indeed, the Commission had little choice but to defend
two-part SFV rates; as it acknowledges, they are the pre-
dominant method of pricing firm service in the wake of Order
636, Resp. Br. at 39, so a FERC repudiation would have
risked regulatory upheaval.
But the Commission found a catch in Transco's proposal,
the 1991 settlement:
Transco proposes, in effect, to unilaterally modify those
[1991] contracts so that the customer will pay a two-part
rate for essentially the same firm service on the supply
laterals. This is unacceptable. The customers must be
given an opportunity to choose between firm or interrup-
tible service.
Opinion No. 405, 76 FERC at 61,061. Thus the Commission
offered its support for an "open season" where Transco's
customers would be allowed to choose between firm and truly
interruptible service (i.e., service that can and will be inter-
rupted at times). Id. at 61,061-62.
Indicated Shippers petitioned for rehearing. On the con-
tract abrogation argument, they argued that "[a] change from
IT-feeders to FTW is a change in rate structure that changes
the apportionment of costs, just as costs are shifted upon the
adoption of a change in rate design or cost allocation method.
Such a change does not constitute an abrogation of existing
contracts." In other words, they said, Transco had proposed
nothing different from the MFV-SFV shift that the Commis-
sion had routinely endorsed--had, indeed, imposed on parties
by overriding contracts in the name of the public interest
under Mobile-Sierra. The Commission, however, was reso-
lute in defense of the prevailing rates. Transco had proposed
"a fundamental change to the rate design, not a mere cost
reallocation." Opinion No. 405-A, 77 FERC p 61,270 at 62,-
127. "A cost reallocation will not change a one-part rate into
a two-part rate; it will only change the level of existing
charges." Id. Indicated Shippers petition for review.
* * *
Under s 4 of the Natural Gas Act a pipeline proposing a
rate change has the burden of showing that the proposed rate
is just and reasonable. If it meets that burden, FERC
approves the rate regardless of whether there may be other
rates that would also be just and reasonable. See Western
Resources, Inc. v. FERC, 9 F.3d 1568, 1578 (D.C. Cir. 1993);
Public Serv. Comm'n v. FERC, 866 F.2d 487, 488 (D.C. Cir.
1989). The Commission is afforded a "narrow section 4 range
of acceptance or disapproval of a pipeline's proposed
changes." Public Serv. Comm'n, 866 F.2d at 491 (quoting
Sea Robin Pipeline Co. v. FERC, 795 F.2d 182, 183 (D.C. Cir.
1986)).
The Commission concedes that "two-part rates are permis-
sible for firm service in the production area." Opinion No.
405, 76 FERC at 61,061; see also 18 CFR s 284.8(d). In
fact, FERC informs us that such rates are "predominant" for
firm service in the production area. Resp. Br. at 39. Thus a
logical first question might be: is Transco's IT-feeder service
"firm service" of the sort for which SFV rates are, in FERC's
words, "permissible" and "predominant"?
FERC and the parties call the IT-feeder service "firm" or
at least "essentially firm." The term "essentially firm" de-
rives from the 1991 settlement, see Settlement Order, 55
FERC at 62,346, and FERC still agrees with that character-
ization. Opinion No. 405-A, 77 FERC at 62,129. The qualifi-
er--"essentially"--appears to derive from certain grandfa-
thered firm service that predated the 1991 settlement. See
Settlement Order, 55 FERC at 62,345-46. The qualifier
might also derive from the paradoxical characterization of IT-
feeder service in the Settlement Order, that it is "not firm"
but also not to be interrupted. See id. at 62,377. FERC at
times returns to this apparent doublespeak in Order No. 405,
referring to "high priority, interruptible service." Order No.
405, 76 FERC at 61,061. In this proceeding, FERC has at no
time rested its decision on any claim that the qualifier "essen-
tially" is material. Accordingly, we treat the service as firm
and the qualifier as immaterial, subject, of course, to the
possibility that on remand the Commission may breathe life
into the qualifier.
And so we reach the central issue: if two-part rates are
permissible and predominant for firm service in the produc-
tion area, and Transco is providing firm service in the produc-
tion area, how can Transco's proposed rate not be just and
reasonable? The Commission offers two bases: first, the
contracts don't allow it, and second, "customers must be given
an opportunity to choose between firm or interruptible ser-
vice," what might be termed a "customer choice policy."
Opinion No. 405, 76 FERC at 61,061.
The Contracts
The Commission's reliance on the prior contracts seems not
to advance the case at all. After the Supreme Court enunci-
ated the Mobile-Sierra doctrine, it approved and gave effect
to so-called "Memphis clauses," under which a pipeline by
contract reserves the freedom to secure rate changes by
standard filings with FERC such as those under s 4. See
United Gas Pipe Line Co. v. Memphis Light, Gas and Water
Div., 358 U.S. 103, 110-15 (1958); see also Union Pacific
Fuels, Inc. v. FERC, 129 F.3d 157, 160 (D.C. Cir. 1997).
Before us the Indicated Shippers assert, and the Commission
does not dispute, that the contracts contained Memphis claus-
es. With a Memphis clause, the contract contemplates and
allows section 4 filings and any "just and reasonable" rates
that result from such filings. Thus we are puzzled by the
Commission's insistence, in the opinions under review and its
brief here, that Transco's filing was inherently an "abroga-
tion" of the contracts. For example, the Commission states
that Transco seeks to "unilaterally modify those contracts,"
Opinion No. 405, 76 FERC at 61,061, and that "Transco's
proposed unilateral change results in an abrogation of the
contracts," Opinion No. 405-A, 77 FERC at 62,127. See also
Resp. Br. at 41-42.
But with a Memphis clause, where is the "abrogation"? At
this point, one would suspect that part of FERC's theory of
"abrogation" would be that the contracts gave rise to a
Mobile-Sierra bar on two-part rates. Opinions No. 405 and
No. 405-A certainly imply as much (although without discuss-
ing either Mobile-Sierra or Memphis). But FERC's brief
disclaims the presence of a Mobile-Sierra bar. Resp. Br. at
42. Rather, FERC describes its analysis as merely "tak[ing]
existing private contractual agreements into consideration,"
id. at 42-43, citing three cases that purportedly encourage
such consideration, one of which is the "Mobile" of Mobile-
Sierra. See id. at 43 (citing Mobile, 350 U.S. at 338-39;
Associated Gas Distribs. v. FERC, 824 F.2d 981, 1009 (D.C.
Cir. 1987); Cities of Bethany v. FERC, 727 F.2d 1131, 1139
(D.C. Cir. 1984)).
Associated Gas and Cities of Bethany are not similar to the
situation Transco presents; they involve inquiries as to
whether rates reached by private contract are discriminatory.
And the Mobile citation is inapt because the Commission
rightly disclaims any Mobile-Sierra bar in the contract. Giv-
en the presence of Memphis clauses, observations from these
three opinions regarding "Congress's intention in the NGA to
allow a vital role for private contracting between parties,"
Associated Gas, 824 F.2d at 1009, provide no apparent basis
for rejecting a proposal for rates that undeniably meet the
"just and reasonable" standard.
Yet the Commission was ready to approve the rates under
special circumstances; because the proposed change was too
"fundamental," Opinion No. 405-A, 77 FERC at 62,127, Tran-
sco could apply it only after an open season. This position
confirms that the Commission perceives no Mobile-Sierra
bar. After such an open season, customers will either have
firm service with a two-part rate or truly interruptible service
with a purely volumetric rate; they will not have their
original bargain.
And so we are left with something of a purple cow. Ac-
cording to the Commission, Transco sought an abrogation of
the contracts by proposing a two-part rate, but the original
one-part rate is not protected by a Mobile-Sierra bar. The
Commission must explain this state of affairs because it
seems to defy the doctrines built upon Memphis and Mobile-
Sierra. Since Opinions No. 405 and No. 405-A do not discuss
either of these cases, or their progeny, we safely conclude
that there was inadequate explanation on this point.
Customer Choice
Perhaps intertwined with the theory of contractual abroga-
tion, the Commission concludes that as a matter of policy
Transco's customers should get a choice as to whether they
pay a reservation charge for their firm service. This policy is
defended as something of a corollary of a policy that is part of
the Commission's regulations: the choice between firm and
interruptible service.
An interstate pipeline that provides firm transportation
service under subpart B and G of this part must also
offer transportation service on an interruptible basis
under that subpart or subparts and separately from any
sales service.
18 CFR s 284.9(a)(1).
Back at the time of the settlement, Transco's customers
made a choice between firm and interruptible service; they
specifically asked FERC to guarantee them firm rights on
the IT-feeders, and FERC did so. The customers also
received (temporarily, because of the Memphis clause) some-
thing of a windfall--firm service but without paying for their
entitlement to capacity. Before these customers can be
forced to pay for their firm service in the predominant
manner (i.e., two-part rates), FERC says they must be given
a new choice
between purchasing a higher quality firm service with a
reservation charge or purchasing a lower quality inter-
ruptible service without a reservation charge.
Opinion No. 405, 76 FERC at 61,060. See also Opinion No.
405-A, 77 FERC at 62,124 n.3 (speaking of the desirability of
customer "choice of a higher quality firm service with a
reservation fee and a lower quality interruptible service with-
out a reservation fee" (emphasis added)).
For practical purposes, the choice between firm and inter-
ruptible service will usually entail a choice between two-part
and one-part rates. Two-part rates predominate for firm
service, and interruptible service has only a one-part rate.
The choice made in Transco's settlement did not correspond
to this model, but the Commission does not make a coherent
case as to why the new choice is required, or why a two-part
rate structure--not merely permissible but predominant for
the service chosen--is unjust or unreasonable.
The Commission calls the imposition of a two-part rate a
"fundamental" change in the rate structure, but a significant
chunk of the Commission's opinion disclaims the criticism of
reservation charges found in the ALJ opinion. See Opinion
No. 405, 76 FERC at 61,060-61. The Commission does offer
the terse conclusion that "[a] cost reallocation will not change
a one-part rate into a two-part rate; it will only change the
level of existing charges." Opinion No. 405-A, 77 FERC at
62,127. We are unsure why this should be relevant. The
basic idea of a Memphis clause is to reserve to the utility the
power to file tariffs that can take effect if they pass Commis-
sion scrutiny under its ordinary standards: thus, if a filing
under s 4 proposes rates that are just and reasonable, as
these concededly are, they are to be accepted--regardless of
the justness and reasonableness of the former rates.
FERC's resistance here is especially odd in light of its
aggressiveness in shifting pipelines with two-part rates from
MFV to SFV. If inclusion of a few fixed costs in the usage
component of a two-part charge was so distortive of the
market as to require the Commission's use of the Mobile-
Sierra public interest standard to effect the MFV-SFV con-
version, one would suppose a one-part charge for firm cus-
tomers, with all fixed costs in a purely volumetric charge,
would be similarly offensive. The Commission's opinions in
this case do not explain why Order No. 636's principles are
not at play here on the side of the Indicated Shippers.1
The policy embedded in the regulations is a choice between
firm and interruptible service, and Transco's customers made
that choice in 1991. They got firm service and a one-part
rate; the pipeline got a Memphis clause. The Commission's
new policy that Transco's customers get a second choice
(framed as one between two packages, firm service with a
reservation charge or interruptible service without) rests on
some heretofore unspoken reason why a reservation charge
for firm service--concededly just and reasonable--is not just
and reasonable because the customers had previously been
receiving firm service under a purely volumetric charge. The
Commission's insistence that the change can be made only by
an open season seems to amount to a belief that customers,
having already elected firm service, must now be asked,
"Firm service--is that your final answer?" Why this second
bite at the apple is needed remains a mystery.
* * *
Because the Commission has failed to "cogently explain
why it has exercised its discretion in [the] given manner,"
__________
1 FERC's regulations provide that "[w]here the customer pur-
chases firm service, a pipeline may impose a reservation fee or
charge on a shipper as a condition for providing such service." 18
CFR s 284.8(d) (emphasis added). This regulation did not figure
prominently in arguments on appeal. It certainly implies that
reservation fees are not required with firm service; it expressly
provides that they are permissible.
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 48 (1983); 5 U.S.C. s 706(2)(A),
we reverse and remand the case for reconsideration in light of
this opinion.
So ordered.
Randolph, Circuit Judge, dissenting: No party denies that
Transco could exercise the Memphis clause and propose a
rate change. But the Commission still had a statutory duty
to ensure that the company's s 4 proposal was "just and
reasonable." 15 U.S.C. s 717c. The Commission performed
that duty and rejected Transco's filing because it did "not
allow for a real choice of service options on Transco's supply
laterals." 76 F.E.R.C. at 61,061. I believe the Commission
offered a reasoned explanation for its decision.
The majority makes much of the Commission's mention of
"abrogation of contracts," but then recognizes that this ratio-
nale is "perhaps intertwined" with the customer choice policy.
Maj. op. at 10. Indeed, reference to the existing contracts
was not an independent ground of the Commission's decision,
but a necessary consequence of the customer choice policy.
If two-part rates are just and reasonable only when custom-
ers have already elected a reservation charge, then the
Commission must ask the simple question whether the cus-
tomers have in fact chosen a reservation charge. The Com-
mission indicated that it would allow a change in rates after
an open season, which would alter the bargain in the original
contract. See id. This demonstrates that the Commission
was not nullifying the Memphis clause.
Thus, the real question is whether the Commission was
arbitrary and capricious in rejecting Transco's proposal based
on the customer choice policy. The Commission has rejected
the idea of an outright ban on reservation charges, noting
that such charges offer advantages to customers. See 76
F.E.R.C. at 61,059 (citing Order No. 436, 50 Fed. Reg. 42,408
(1985)). But the Commission also recognizes that reservation
charges tie customers to the pipeline, creating an incentive to
use the pipeline even if more efficient service can be obtained
elsewhere. See 76 F.E.R.C. at 61,060. The Commission thus
decided that it is best left to individual customers to "weigh
whether the advantages of obtaining a firm right to service on
the pipeline are worth the limits which the reservation charge
will inevitably impose on the desirability of its switching to
supplies on another system." Id. Because Transco's propos-
al denied conversion shippers an opportunity to make this
cost-benefit analysis for themselves, the Commission rejected
it.
The majority emphasizes that customers have already cho-
sen firm service. See maj. op. at 12. But the question is not
whether customers already elected "essentially firm" service.
The question is whether they already elected two-part rates.
It is uncontested that they did not. The majority also finds
the Commission's decision "especially odd" because it suppos-
edly conflicts with Order 636's principle against fixed costs in
usage charges. See id. This takes Order 636 too far. The
Commission there decided only that "[i]f a reservation fee is
charged, it must recover all fixed costs attributable to the
firm service....." 18 C.F.R. s 248.8(d) (emphasis added).
To find that fixed costs could never be included in usage
charges would require doing away with interruptible service
(which is necessarily a one-part rate), something the Commis-
sion certainly did not intend. According to the majority, the
Commission rejected as unjust and unreasonable a two-part
rate that is the "predominant manner" of "firm service."
Maj. op. at 11. This forgets that the predominant manner of
service overall is to allow customers to choose whether to pay
a reservation charge and receive firm service or to reject the
reservation charge and receive lower priority service. In-
deed, the majority does not cite a single case (in either s 4 or
s 5 proceedings) in which the Commission approved two-part
rates when customers had not previously made the calculation
that reservation charges would be advantageous.
I therefore dissent.