Alabama Power Company v. Federal Power Commission

Fifth Circuit

Alabama Power Company v. Federal Power Commission

291 F.2d 558

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 24, 1961

Docket18658-18660

StatusPublished

Cited by2 cases

This text of 291 F.2d 558 (Alabama Power Company v. Federal Power Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alabama Power Company v. Federal Power Commission, 291 F.2d 558 (5th Cir. 1961).

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TUTTLE, Chief Judge.

These three petitions for review of “orders” of the Federal Power Commission are consolidated for purposes of briefing and argument. We have quoted the word “orders” above because the Commission asserts and the petitioner seems to agree that no orders of the Commission are here attacked. Rather the Alabama Power Company contends that the action of the Commission denying its petition for amendment of an existing license to develop the water power of the Coosa River in relation to the Jordan Dam and proposing to amend the Jordan Dam and two other licenses in different particulars is not binding on it and that such amendments cannot be forced upon it without its approval.¹

[559]*559The Commission says that the actions taken by it in connection with the requested amendment of the Jordan Dam license and its proposed amendment of the two dam licenses are in legal contemplation two things: 1. They are orders of the Commission touching on certain matters dealing with desirability and economic and other factors which, unless attacked by the Power Company by motion for rehearing and, upon denial, by petition to vacate, will stand as final and binding. 2. They are proposed amendments of three existing licenses held by the Power Company which, if accepted, will thereafter be controlling in the enjoyment of the licenses by the Power Company.

What the petitioner here seems to have overlooked until oral argument is the concession by the Commission of the only point raised by the Power Company in this Court: that the Commission’s “order” did not unilaterally amend the existing licenses.

In view of the fact that the petitioner did not, in its motion for rehearing below or in its petition here, seek to set aside the orders of the Commission as orders but sought only a determination that it is not bound by the proposed amendments not accepted by it, there remains nothing for this Court to pass upon.

The petitioner, as provided in the applicable section of the Federal Power Act, 16 U.S.C.A. § 799,² may refuse to accept alterations to the licenses, in which event they are left with their unamended licenses and whatever rights in the development of the projects as may be comprehended thereunder.

It appearing that these are not petitions to review orders of the Federal Power Commission, the petitions are hereby dismissed.

Petitions dismissed.

¹

. The petitioner states the issue thus: “The issues presented by these petitions for review is very simple. In September, 1957, Respondent duly issued the license for Project No. 2146, authorizing a comprehensive development of the Coosa [559]*559River by Petitioner * * *. Thereafter, Petitioner requested certain important and comprehensive amendments to the license for Project No. 2146, upon certain express and material conditions * * *. Respondent refused to grant the amendments as requested by Petitioner, and in lieu thereof issued three orders * * * purporting to amend not only the license for Project No. 2146 but also the licenses for Project Nos. 82 and 618, as to which Petitioner had never sought any amendments, in a manner and under conditions which are wholly unacceptable to Petitioner. The issue is whether Respondent can compel Petitioner to accept these amendments set forth in these orders over its objection.”

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TUTTLE, Chief Judge.

These three petitions for review of “orders” of the Federal Power Commission are consolidated for purposes of briefing and argument. We have quoted the word “orders” above because the Commission asserts and the petitioner seems to agree that no orders of the Commission are here attacked. Rather the Alabama Power Company contends that the action of the Commission denying its petition for amendment of an existing license to develop the water power of the Coosa River in relation to the Jordan Dam and proposing to amend the Jordan Dam and two other licenses in different particulars is not binding on it and that such amendments cannot be forced upon it without its approval.¹

[559]*559The Commission says that the actions taken by it in connection with the requested amendment of the Jordan Dam license and its proposed amendment of the two dam licenses are in legal contemplation two things: 1. They are orders of the Commission touching on certain matters dealing with desirability and economic and other factors which, unless attacked by the Power Company by motion for rehearing and, upon denial, by petition to vacate, will stand as final and binding. 2. They are proposed amendments of three existing licenses held by the Power Company which, if accepted, will thereafter be controlling in the enjoyment of the licenses by the Power Company.

What the petitioner here seems to have overlooked until oral argument is the concession by the Commission of the only point raised by the Power Company in this Court: that the Commission’s “order” did not unilaterally amend the existing licenses.

In view of the fact that the petitioner did not, in its motion for rehearing below or in its petition here, seek to set aside the orders of the Commission as orders but sought only a determination that it is not bound by the proposed amendments not accepted by it, there remains nothing for this Court to pass upon.

The petitioner, as provided in the applicable section of the Federal Power Act, 16 U.S.C.A. § 799,² may refuse to accept alterations to the licenses, in which event they are left with their unamended licenses and whatever rights in the development of the projects as may be comprehended thereunder.

It appearing that these are not petitions to review orders of the Federal Power Commission, the petitions are hereby dismissed.

Petitions dismissed.

¹

. The petitioner states the issue thus: “The issues presented by these petitions for review is very simple. In September, 1957, Respondent duly issued the license for Project No. 2146, authorizing a comprehensive development of the Coosa [559]*559River by Petitioner * * *. Thereafter, Petitioner requested certain important and comprehensive amendments to the license for Project No. 2146, upon certain express and material conditions * * *. Respondent refused to grant the amendments as requested by Petitioner, and in lieu thereof issued three orders * * * purporting to amend not only the license for Project No. 2146 but also the licenses for Project Nos. 82 and 618, as to which Petitioner had never sought any amendments, in a manner and under conditions which are wholly unacceptable to Petitioner. The issue is whether Respondent can compel Petitioner to accept these amendments set forth in these orders over its objection.”

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291 F.2d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-power-company-v-federal-power-commission-ca5-1961.

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