Alabama Power Company v. Federal Power Commission, Consolidated Edison Company of New York, Inc. v. Federal Power Commission ( 1974 )

LEVENTHAL, Circuit Judge:

The petitioners are electric utilities regulated by the Federal Power Commission. They challenge the Commission’s refusal to reconsider its practice of collecting and disseminating certain information about their fuel purchase transactions, asserting that the disclosure of information facilitates anticompetitive behavior by fuel suppliers. We affirm the Commission’s dismissal of their petition.

I. STATEMENT OF FACTS

A. The Commission’s Data Collection Requirements

On November 26, 1971, the Commission proposed, in a notice of proposed rulemaking, to augment its collection of data on the operations of electric utilities by requiring each utility to submit a monthly report on fuel purchases. The report was to specify certain details about every delivery of fuel at a steam generating plant during the reporting month, including the quantity and quality of fuel received, the name of the supplier, the price per unit and the expiration date of the contract under which fuel was purchased. By the terms of the regulation initially proposed, the information reported to the Commission was to remain “confidential information not available to the public or any other agency of government except insofar as may be directed by the Commission or by a court.”

Various parties submitted comments in response to the Commission’s initial proposal. Some utilities objected that the reporting requirements were unduly burdensome, and some indicated that, notwithstanding the Commission’s announced intention to limit disclosure, the reporting of this information might eventually prove harmful to a company’s proprietary interest. Other parties, however, supported the data collection effort and sought to expand disclosure of the data reported. Three federal agencies — the Federal Trade Commission, the Environmental Protection Agency, and the Office of Emergency Preparedness — indicated that the data would be useful for intra-agency studies and sought access to the data by their respective staffs. The Environmental Protection Agency and the Office of Emergency Preparedness recommended that, except for certain items, such as name of supplier (OEP) and contract expiration date (EPA), there was no reason why the data should remain confidential.¹ Still other parties — e. g., the Sierra Club, Friends of the Earth, and the Public Interest Research Group —argued for public disclosure of all the data.

After receiving written submissions, the Commission, on January 17, 1972, held a hearing at which interested parties were allowed to comment on the proposed regulation. At the hearing, at which a representative of the General Counsel of the Commission presided, the parties made oral presentations and cross-examined other participants; written statements were also accepted for inclusion in the record.

The Commission responded to the views expressed at the January hearing by focusing on the kind of information to be reported and disclosed. In a Notice of Proposed Alternatives in Rule-making, promulgated March 9, 1972, the Commission offered two alternative forms for reporting data. The first alternative was substantially similar to the form initially proposed, requiring the utility to report details of the transaction at each plant delivery of fuel. The second form permitted utilities to report only the average unit cost, during the reporting month, of fuel delivered at plants located in a single Standard Metropolitan Statistical Area (SMSA), rather than the price paid at each plant delivery. The second form also omitted all references to the names of suppliers and contract expiration dates. The Commission proposed prompt disclosure of information reported by either form, but the averaging of cost information on the second form necessarily concealed some transaction details reportable on the first.

Following the March 9 notice, interested parties again submitted written comments to the Commission. While some utilities maintained their objections to any reporting requirement, controversy centered largely on which of the two reporting forms the Commission should adopt. Many utilities expressing a preference favored adoption of the form that allowed them to report only the average cost of fuels delivered at plants within a single SMSA. On the other hand, submissions of other parties, including those of the Subcommittee on Special Small Business Problems of the House Select Committee on Small Business, the Office of Emergency Preparedness, the Sierra Club, Friends of the Earth, and the Public Interest Research Group, expressed a preference for the form that called for information on each plant delivery, and this was the alternative the Commission adopted by promulgating Regulation 141.61² on June 7, 1972.

B. The Utilities’ Petition To Amend the Regulation

In January, 1973, seven months after the Commission promulgated the regulation, the electric utilities petitioned for its amendment, asserting that disclosure of information about specific transactions — especially the seller’s name, the contract expiration date, and the price —had furnished fuel suppliers with new information about the utilities’ willingness to pay for fuel, thereby “plac[ing] the reporting utilities at a decided disadvantage in negotiations for available •fuel supplies.” As the utilities put it in their petition:

[A]n extremely valuable piece of bargaining information is now in the hands of the seller, viz, evidence of the price which the buyer has recently been willing or required to pay. This information is especially advantageous to the supplier, who as a member of the industry, has a good idea of the supply position of his competitors. The purchasing utility is doubly disadvantaged because it not only does not know what costs are incurred by its suppliers, but it also does not know what prices are being offered by non-utility fuel purchasers. (JA 73)

The utilities argued that availability of the information to fuel sellers could facilitate anticompetitive pricing practices by them, citing in support the cases which have held exchanges of price information to violate § 1 of the Sherman Act, e. g., United States v. Container Corp. of America, 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969). The utilities asked the Commission to modify Regulation 141.61 either (1) to permit the utilities to report the average unit price of fuels delivered at each plant, rather than the price at each delivery, and to cease reporting the supplier’s name and contract expiration date; or (2) to continue existing reporting requirements but disclose the data only to other government agencies.

C. Commission’s Refusal To Amend the Regulation

In an opinion dated March 2, 1973 (hereinafter “initial opinion”), the Commission denied the requested relief on two grounds. First, the Commission asserted that it lacked jurisdiction to amend the regulation because the order promulgating it was then before this court for review on petition of the National Coal Association.³

As an alternative ground of decision, the Commission addressed the merits of the petition and observed that since it contained no allegation of an agreement among the suppliers to exchange information, no violation of Sherman Act § 1 had been stated. The Commission noted that the antitrust laws did not prohibit collection of information and disclosure by the Commission itself. The Commission provided, however, that

Petitioners may file an Offer of Proof, . . . setting forth facts and other circumstances to support its allegation that disclosure of data . . . has resulted in injury to electric utilities and that such injury outweighs the public benefit from full disclosure and the relief which the Commission can grant, if any. (J.A. 85)

In an application for rehearing filed April 2, 1973, the utilities contested the Commission’s disclaimer of jurisdiction to give relief, and on the merits elaborated on the arguments presented in the first petition.⁴ The Commission dismissed the application on April 16, 1973, stating that it failed to “identify with any degree of specificity, the evidence to be presented” in support of the utilities’ claim of injury. The utilities took this appeal.⁵

II. THE COMMISSION’S DISMISSAL ON THE GROUND OF JURISDICTIONAL LIMITATIONS ON RELIEF

In offering a disclaimer of jurisdiction to amend Regulation 141.61 as an independent ground for dismissal of the utilities’ petition, the Commission apparently took the position that inability to grant relief during the pendency of appeal alone justified refusal to reconsider the policy embodied in the regulation. With this position we disagree.

Limitations on the Commission’s power to modify an order during the pendency of an appeal may be inferred from Section 313 of the Federal Power Act, 16 U.S.C. § 8251, providing that the Commission may modify or set aside an order “[u]ntil the record in a proceeding shall have been filed in a court of appeals” (§ 313(a)), and that upon the filing of a petition to review a court of appeals “shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside” the order (§ 313(b)). The precise scope of these limitations has not been fully defined. The statute disables the Commission, while appeal is pending, from altering its findings or orders addressed to particular persons, entered after adjudication.⁶ But a different result may obtain where the “order” entered by the Commission adopts a general regulation — a hybrid that the Commission has been using with increasing frequency in recent times- — and what is sought is a change of policy, to be effected by promulgation of a new general regulation. There is room for doubt that Congress intended by the foregoing provisions to disable the Commission, during the pendency of appeal, from reconsidering broad policy decisions, and from making prospective changes through the instrument of the rulemaking power.⁷

There is, however, no need here to define the precise contours of Section 313. Assuming the Commission’s remedial powers to be limited during the pendency of appeal, it nevertheless retains power to consider a petition for amendment and to defer until disposition of the appeal any modification found appropriate or, in a case of urgency, to apply to the reviewing court for a remand order so as to permit amendment. Compare Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). Thus in this case the pendency of the National Coal Association’s petition to review,⁸ even assuming that it temporarily barred amendment, did not itself warrant a refusal to consider the utilities’ petition.

An agency may, of course, keep its administrative burden manageable by refusing to engage in protracted reconsideration of a decision reached after thorough exploration of the matter in a prior rulemaking proceeding. It may, for example, limit reexamination of a particular matter to reasonable intervals, to insure that reconsideration occurs against an adequate background of experience, and to conserve administrative resources by providing interested parties an incentive to introduce in a single proceeding all information pertinent to the issues presented. See Permian Basin Area Rate Cases, 390 U. S. 747, 777-780, 88 S.Ct. 1344, 20 L.Ed. 2d 312 (1968) (permitting FPC to impose temporary moratorium on rate increase filings); Western Airlines, Inc. v. CAB, 161 U.S.App.D.C. 319, 495 F.2d 145 (1974).⁹ The ability to defer reconsideration as a matter of sound administrative practice is, however, totally different from a self-imposed jurisdictional barrier that would inhibit consideration of a problem raised even by a meritorious and urgent application.

Despite our disagreement with any intimation that the Commission was jurisdictionally inhibited from considering the utilities’ application, we do not endow injury here. The Commission, despite the overtones of a jurisdictional disclaimer, permitted a renewed application for relief and in its order on rehearing focused on deficiencies that went to the merits. Accordingly, we proceed, in the interest of justice, 28 U. S.C. § 2106, to a review of that determination.

III. THE COMMISSION’S RESPONSE TO THE ASSERTION OF ANTICOMPETITIVE EFFECTS

We begin our consideration of the Commission’s treatment of the merits with the comment that the initial opinion of March 2 carries an indication that the Commission did not perceive the thrust of the utilities’ prayer for relief. The Commission confined itself to observing that no Sherman Act violation had been alleged. That was simply no answer to the utilities’ central contention that while disclosure of information by the Commission was coneededly lawful, its availability to fuel suppliers would facilitate interdependent pricing behavior, contrary to the policy objectives of the antitrust laws.¹⁰ And the Commission’s subsequent order denying relief for lack of specific evidence, although it begins to approach identification of the deficiencies of the utilities’ petition, has a Delphic simplicity that fails to give a reviewing court confidence that the agency has taken a “hard look” and has “genuinely engaged in reasoned decision-making.” Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S. Ct. 2229, 2233, 29 L.Ed.2d 701 (1971).

The utilities’ petition, however, came only seven months after the rulemaking proceeding in which the general matters of data collection' and disclosure had been thoroughly ventilated. When the Commission’s response is viewed against that background, its approach emerges with reasonable clarity.¹¹

In the rulemaking proceeding, those parties urging the Commission to obtain and disclose information about each fuel purchase transaction argued that only-information of such detail would permit accurate studies to be made of such matters as the relationship between fuel price, quality, and environmental effects of use. This is a positive research benefit from disclosure — which is something more than an abstraction or theology that disclosure is good for its own sake, or for moral elevation.

The utilities seeking more limited reporting and disclosure did not essentially dispute the assertion of benefits of detailed disclosure as an aid to research studies. Instead the utilities raised essentially the same objection they now make — that disclosure of information would lead to bargaining disadvantages in future fuel contract negotiations. While the objection was not couched in “antitrust” terms, at least some participants referred to the predicted bargaining disadvantages as “anticompetitive.” ¹² The merits of this objection were disputed by the parties favoring full disclosure, who pointed to the apparent anomaly that both fuel buyers and sellers foresaw bargaining disadvantages if information were disclosed, and to the lack of specific illustrations drawn from industry experience to suggest the likelihood and magnitude of injury. Moreover, several parties asserted that any bargaining disadvantage sustained by either a purchaser or seller of fuel as a result of disclosure would not amount to an anticompetitive effect but would merely reflect the removal of information imperfections in an otherwise competitive market, thereby facilitating efficient allocation of resources. As the Public Interest Research Group put it:

Cost information will at most affect the speed with which the market responds to factors of supply and demand. The public interest is in improving the market mechanism as a means of rationalizing economic decisions both by utilities and coal companies. Adequate information will encourage efficient allocation of resources by making the market more responsive to changes in supply and demand.

******

If the fears of losing a favorable position expressed by both sellers and buyers are justified and if both expect that making cost data available will remove their advantage, it is clearly to the public’s interest to make that information available. On the other hand, if these fears are ungrounded and either the favorable position is imagined or is such that it will not be affected by the information, then there is no competitive justification for not making that cost data available.

Public Interest Research Group Comment on Rulemaking, April 5, 1972, J.A. 44-46. See also Transcript of hearing at 90-4,106-110, 114-25.

Submissions like the foregoing put in issue the structure and performance of the markets in which the utilities purchase fuel. Further information on these matters was an essential part of any demonstration that disclosure of transaction data would pose risks of antitrust significance.¹³ Yet no additional material was adduced by either the utilities or fuel suppliers — the parties who were both in a position to provide evidence and had an incentive to do so. Their failure to make any additional proffer allowed the reasonable inference that disclosure posed no substantial risks of anticompetitive behavior.¹⁴ Accordingly, the Commission based its adoption of the reporting form on the public benefits that would flow from making specific transaction data available to serve research objectives and facilitate market allocation of fuel, concluding that the reporting form adopted would furnish information in its most useful form and would thus be “significantly greater in analytical value” than the alternative.

The utilities’ petition for amendment filed seven months later added only one new allegation: that the utilities had actually experienced the bargaining disadvantage prophesied during the rulemaking proceeding. But the utilities were not prepared to give any specifics whatever as to the existence of an injury. Their presentation on rehearing gave no details as to market structure to show that the claimed bargaining disadvantage might plausibly result from sellers’ anticompetitive behavior, rather than from the termination of the utilities’ informational advantage based upon sellers’ ignorance.¹⁵ The Commission treated the utilities’ presentation as merely a renewal of the arguments made against disclosure in the rulemaking proceeding and, since no new evidence was adduced, rested its denial on what it had said in promulgating the data-collection regulation.

The utilities point out that because their proposal to report the average cost of fuel received at a plant was not among the alternatives considered in the rulemaking proceeding, the Commission has never made a finding that the present practice is comparatively superi- or. While not disputing that the Commission’s presentation of two alternatives was a reasonable judgment, designed to focus attention in the rulemaking proceeding, the utilities say that the Commission has a present obligation to address their proposal. This contention is not necessarily without merit, at least as addressed to the agency’s discretion, and possibly in an appropriate case as supporting a challenge to an agency’s adherence to a regulation without giving suitable opportunity for reconsideration or modification “in the light of actual experience.” Compare American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633 (en banc), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L. Ed.2d 75 (1966). But in this case the third alternative was one that the utilities could have put forward in the rule-making proceeding. While the Commission’s March 1972 notice focused on two proposed 'alternative forms, we cannot suppose that the Commission would have rejected as “out of bounds” a comment suggesting that it combine parts of both forms.¹⁶ Having failed to introduce such a suggestion the utilities were on notice that this was a subject the Commission did not intend to consider afresh without some kind of factual showing. This was a reasonable position for the agency to take. There is, after all, a. significant difference between a system for the exchange of information solely among the firms of one side of the market, as in United States v. Container Corp., 393 U.S. 333, 89 S.Ct. 510, 21 L.Ed.2d 526 (1969), which may be condemned without a particularized showing of harm because of the accompanying danger of collusion, and a system whereby information is made available to all participants in the market (compare footnote 13 supra). Public disclosure of information by the Commission does not present the same risk; since the Commission has found benefits in such public disclosure, it may reasonably require a showing of harm before changing its mind. Orderly functioning of the administrative process requires some degree of finality when rulemaking reaches its conclusion, and although an agency cannot rigidly shut its ears to cries of “new ideas” it can insist that their proponents accompany them with a reasonably firm factual underpinning. We believe the Commission satisfied its obligation when it examined the utilities’ petitions for amendment and found no new material bearing on the harm caused by disclosure of detailed transaction information.

In upholding the Commission, we acknowledge that its orders, both in the original rulemaking and in response to the petitions for amendment, are not paragons of clarity. Greater specificity in identifying the deficiencies in the utilities’ arguments against disclosure would have been laudable; indeed, a more carefully reasoned dialogue among the antagonists might have obviated the need for this appeal. But we do not review agency action in order to perfect the administrative process to the nth degree. A court should uphold an agency, even when its findings lack ideal clarity, if “the agency’s path may reasonably be discerned.” Here, the Commission’s path to decision emerges from the course of the rulemaking proceeding, and we are not obliged to “guess as to the agency’s findings or reasons.”¹⁷ The utilities took no appeal from the Commission’s order promulgating the regulation the amendment of which they seek. Once that order became final, the Commission was not required to consider afresh a claim of injury thoroughly ventilated in the earlier proceeding and now reargued without any new evidence in support.

The utilities remain free to present a new petition for amendment of regulation 141.61, accompanied by factual representations sufficient to fill the gaps that have been identified in their earlier submissions. The Commission retains continuing oversight and, subject to reasonable rules to limit administrative burden,¹⁸ a responsibility to consider such a presentation. Special obligations may be triggered by a persuasive claim that an agency has overlooked considerations of such import as those embodied in the antitrust statutes. That the general policy of promoting competition in the market is an important component of regulation in the public interest is a principle both longsettled, see McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544 (1944), and of current vitality, see Gulf States Utilities v. FPC, 411 U.S. 747, 757-760, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973). The Commission of course lacks principal responsibility for the implementation of antitrust policy; indeed, it may be accustomed to viewing matters in terms of the paradigm of monopoly regulation rather than of markets lubricated by competitive conditions. Other agencies, having primary concern with enforcement of the antitrust statutes, are presumably able to assist the Commission by giving advice on disputed issues of antitrust policy and by identifying the factual questions relevant to an assessment of the anticompetitive impact of a proposed action. The opportunity for consistency and evenhandedness in the development of policy that Congress has put within the ken of several administrative bodies is enhanced when one agency elicits the views of another and draws upon the latter’s expertise. Such a procedure would embody sound administrative practice.¹⁹ The Commission retains an obligation to give reasoned consideration to the bearing of antitrust policy on matters within its jurisdiction.

Affirmed.

1 . The Office of Emergency Preparedness stated that “except for such entries as the name of oil suppliers, the data do not appear to be of a confidential character.” In a letter to the Commission, the Environmental Protection Agency suggested that only contract expiration date and mine identification should be kept confidential. At a hearing in January, 1972, an EPA representative stated that EPA had “not taken a position” on full public disclosure. Hearing Transcript at 50.

2 . Order No. 453 Adding a New Section 141.-61 to Title 18 of the Code of Federal Regulations Prescribing Fuel Reporting, Docket No. R-432 (June 7, 1972). On September 12, 1974, the Commission extended the reporting requirements to include fuel received at gas turbine and internal combustion engine generating plants, as well as at steam generating plants, of electric utilities. Order No. 512 Amending Form 423, Designated in Section 141.61 of the Regulations of the Federal Power Act, Docket No. R-432 (A).

3 . The order was challenged in National Coal Association v. FPC, No. 72-1919. The petition for review was subsequently withdrawn on May 19, 1973.

4 . The utilities alleged that each fuel supplier knew, as a result of the dissemination of transaction information, the price a utility had paid to competing suppliers; that “at least one fuel supplier” had notified a utility that, because of public disclosure it could not continue to give the utility a favorably low price; that disclosure of transaction information had put an end to the practice of negotiating “favorable prices with the understanding that the prices would be treated as confidential”; that disclosure of price information facilitated resale price maintenance on the supply side of the market; and that

given the foregoing facts, dissemination of Form 423 information to their fuel suppliers will result in a completely new basis for negotiating fuel supply contracts and prices to Petitioners and other electric utilities for fuel in each market higher than if such information is not available to their fuel suppliers, to the injury of Petitioners and their customers. . . . (J.A. 93-94).

5 . See 16 U.S.C. '§ 8251 (1970).

6 . See Dyer v. SEC, 289 F.2d 242, 244 (8th Cir. 1961) (construing virtually identical language of Public Utility Holding Company Act of 1935).

7 . The Executive has a “responsibility to give appropriate consideration” to petitions for amendment. Nat’l Org. for Reform of Marijuana Laws (NORML) v. Ingersoll, 162 U.S.App.D.C. 67, 497 F.2d 654, 657 (1974).

8 . National Coal Association v. FPC, supra, note 3.

9 . The agency’s need to control the nse of its resources is recognized as well in those cases holding that an agency may defer reconsideration of policy decisions until completion of staff studies, even when it is alleged that grave risks might be posed by continuation of the status quo. B. g., Nader v. FAA, 142 U.S.App.D.C. 264, 440 F.2d 292 (1971).

10 . Disclosure of the details of every transaction may facilitate interdependent pricing or “conscious parallelism” by firms in an oligopolistic market. In markets characterized by few sellers, secret shading of announced prices may provide the only form of price competition; publicizing transaction prices will chill price competition by foreclosing any opportunity for a seller to lower his price without fear of detection and retaliation by rivals. The chilling effect flows from publicity itself and does not depend on who collects or disseminates the information. Although the anticompetitive effects of information are usually discussed with reference to a market characterized by oligopoly on the supply side alone, concentration may occur among purchasing firms as well; circulation of transaction data may allow a few buyers to gain at the expense of many sellers.

For a discussion of the effect of information on oligopolistic pricing, see F. M. Scherer, Industrial Market Structure and Economic Performance 449-53 (1970).

11 . The parties have provided the court with certain excerpts from the record in the rulemaking proceeding. We approve that course, even though it was not formally incorporated into the record of the present docket. Patently, familiarity with the rule-making proceeding was indispensable to our understanding of the Commission’s disposition before us on review. To enhance further our understanding of the present case, we directed counsel for the Commission to lodge with the court a transcript of the hearing held on January 17, 1972. Since .the petitioners at bar were parties to the rule-making proceeding and they advert to those proceedings in seeking relief, we see no difficulty with our use of the record made there to decide the present ease. The facts here do not present the kind of difficulties in the use of a record made in another proceeding which prompted our ruling in Public Service Commission of New York v. FPC [Texas Gulf Coast Area Rate Cases], 159 U.S.App.D.C. 172, 487 F.2d 1043, 1069-1070 (1973), vacated and remanded for reconsideration, 417 U.S. 964, 94 S.Ct. 3167, 41 L.Ed.2d 1136 (1974).

12 . At the hearing conducted on January 17, 1972, the representatives of some utilities stated that they were not opposed to collection of detailed transaction data or to its disclosure. See Transcript of hearing at 24 (statement of Mr. Fry). Those utilities that were opposed objected on the grounds that reporting was burdensome and that disclosure would lead to bargaining disadvantages. See Transcript at 25-27, 29-32, 33-40, 63-65, 69-70, 87-89, 91-94. The National Coal Association also asserted that disclosure would cause bargaining disadvantages for its members. Transcript at 11-25.

13 . In general, information is of anticompetitive concern only where market structure does not tolerably approximate that of perfect competition. Perfect information available to all buyers and sellers is, indeed, one of the conditions of the economic model of “perfect competition,” and where the remaining conditions are satisfied, dissemination of information tends to facilitate prompt adjustment to the market clearing price by all parties to transactions. A sudden improvement in the availability of information may deprive a buyer of an advantage he enjoyed when, under more imperfect dissemination, he exploited a seller’s ignorance of the market price. Advantages like these reflect the reality of cross-currents in a mixed market structure. Generally, however, laws and practices to safeguard competition assume that its prime benefits do not depend on secrecy of agreements reached in the market. The prime advantage of a competitive market is overall efficiency in allocation of resources. While there may be reasons for temporary secrecy to avoid collusion and enhance competition, as in sealed competitive bids, even here secrecy is displaced with the opening of bids and award of the contract.

14 . It is a familiar rule of evidence that a party having control of information bearing upon a disputed issue may be given the burden of bringing it forward and suffering an adverse inference from failure to do so. See McCormick, Evidence § 337 at 787 (2d ed. 1972). In regulatory proceedings, placing such a burden on the regulated firm, where the relevant information concerns its operations and management, has become part of the “common lore” of regulations. See Commonwealth of Puerto Rico v. FMC, 152 U.S.App.D.C. 28, 36, 468 F.2d 872, 880 (1972).

15 . The Commission’s order of March 2, 1973,' permitted petitioners to file an offer of proof “setting forth facts and other circumstances to support its allegation that disclosure of data under Form 423 has resulted in injury to electric utilities.” Petitioners’ application for rehearing recited that they were not complying with this provision, stating: “[I]n effect [this provision] requires the Petitioners to put a dollar value on their injury from dissemination of Form 423 since last September. Petitioners do not believe that proof of the size of the injury in that time frame (which is impossible to establish with any accuracy) is required to sustain their position under the foregoing offer of proof.” (J.A. 94-95). Petitioners’ restatement does not fairly characterize what the FPC order provided.

16 . The March 9, 1972, notice provided that interested persons may submit comments “concerning all or part of the rulemaking options proposed herein.”

We note that the only petition for rehearing of Order No. 453, adopting the regulation, was one filed by the National Coal Association.

17 . Greater Boston Television Corp. v. ECO, 143 U.S.App.D.C. 383, 393, 444 F.2d 841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971).

18 . See text at note 9 supra.

19 . See City of Pittsburgh v. FPC, 99 U.S. App.D.C. 113, 126, 237 F.2d 741, 754 (1956).