United States Court of Appeals,

Fifth Circuit.

No. 92-4066.

TRANSCONTINENTAL GAS PIPE LINE CORPORATION, et al., Petitioners,

v.

FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

Aug. 27, 1993.

Petitions for Review of Orders of the Federal Energy Regulatory Commission.

Before REYNALDO GARZA, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Transcontinental Gas Pipe Line Corporation ("Transco") appeals an order of the Federal

Energy Regulat ory Commission ("the Commission" or "FERC") finding that Transco violated the

Natural Gas Act ("NGA") and refusing to allow Transco to pass through $75 million to some of its

customers. Several of Transco's customers have intervened, urging us to restructure the remedy the

Commission crafted. We decline to do so and affirm the Commission's order in all respects.

I.

This case has at its roots the changes that occurred in the natural gas industry in the 1970's

when interstate pipelines started to curtail service upon entering into long-term purchasing

agreements. In 1978, Transco signed long-term contracts to buy gas from its producers. The

contracts included "take-or-pay" provisions that obligated Transco either to take delivery of an

amount of gas or to pay for that amount even if Transco did not take delivery.

In the early 1980's, the price of gas declined. Transco still was bound to take or pay for gas

at prices well above the market rate. The Commission's regulations required Transco to charge all

customersthe same price for gas, computed by averaging the cost of all gas Transco purchased; this

is called the weighted average cost of gas purchased for resale ("WACOG"). Partly because of

Transco's take-or-pay contracts, its WACOG was higher than the price of alt ernative fuels or gas

available on the spot market. As a result, Transco started to lose customers, called "non-captive"
 

1Dth = Decatherm, a measure of gas based upon its heat content. One decatherm equals 1,000

cubic feet of gas with the standard heat content. Columbia Gas Transmission Corp. v. FERC,

848 F.2d 250, 251 n. 1 (D.C.Cir.1988). 

customers, who could shift to alternative fuels or buy on the spot market. Customers without access

to lower-priced alternatives, who had to continue to purchase WACOG fuel at a rate filed with the

Commission, were called "captive."

In the mid-1980's, the Commission started encouraging pipelines to devise new ways to

combat their declining sales. In response, Transco set up a program, called a Special Marketing

Program, that the Commission approved—on a temporary, experimental basis—in 1983. Under this

program, Transco released gas subject to high take-or-pay requirementsfor sale on the spot market.

Transco then could transport the market-priced gas to non-captive customers. In 1984, the

Commission conditioned the extension of the program on Transco's agreeing to grant captive

customers some access to cheaper gas, up to ten percent of the maximum volume of gas that the

captive customers could demand.

Not completely satisfied with the Commission's conditions, Transco proposed its own

Discount Service Program instead. Under this program, all customers could buy up to three percent

oftheir required gas at market prices and then buy an additionalseven percent at market pricesifthey

purchased a "threshold level" of Transco's more expensive system supply gas. The Commission

approved Transco's Discount Service PrograminMarch 1985,stipulating, however, that the plan not

go into effect until the United States Court of Appeals for the District of Columbia Circuit permitted

Transco to carry out the program.

When the District of Columbia Circuit had not acted by April 1985, Transco, without the

Commission's approval, decided to implement a variation ofits Discount Service Programbycreating

two subsidiaries, Transco Resources, Inc. ("TRI"), and Transco EnergyMarketingCo. ("TEMCO"),

to sell more of its excess gasto non-captive customers at the market rate instead of at Transco's filed

rate of $3.01 per Dth.1 Transco used TRI to sell gas from April until October 1985, and TEMCO
 

2

In May 1985, the District of Columbia Circuit issued its opinions in the Maryland People's

Counsel cases. In Maryland People's Counsel v. FERC, 761 F.2d 768 (D.C.Cir.1985) ("MPC I

"), Maryland People's Counsel v. FERC, 761 F.2d 780 (D.C.Cir.1985) ("MPC II "), and

Maryland People's Counsel v. FERC, 768 F.2d 450 (D.C.Cir.1985) ("MPC III "), the court

disallowed a special marketing program approved by FERC, one very similar to Transco's,

stressing that it unduly discriminated against captive customers by denying them the same access

to lower-priced gas that non-captive customers enjoyed. 

 

3Actually, most of the captive customers paid slightly below the filed rate because they had

access to at least three percent of their gas at the market rate. 

from June until November 1985.2

Transco arranged for TRI to prepay producers at spot market pricesfrom revenues obtained

from TRI's sale of gas from the Transco system supply. In exchange, the producers released gas to

TRI that had been contracted for by Transco. TRI later returned some volumes of gas to Transco

and bought and sold gas from the spot market to non-captive customers. From April until August

1985, TRI sold gas at an average price of about $2.55 per Dth, $.46 below Transco's filed rate

charged to captive customers.3 From April through July 1985, TRI sold more gas each month than

it purchased.

TEMCO operated in a similar fashion. Transco also set up TEMCO to sell gas to non-captive

customers at market-responsive prices, a function Transco could not perform under the NGA.

TEMCO concurrentlysold and prepaid for gas at market ratesthat Transco released fromits pipeline.

TEMCO sold this gas before the producers actually produced any gas. From June until November

1985, TEMCO sold gasto non-captive customers at an average price of about $2.23 per Dth. During

this time, TEMCO sold more gas than it purchased, creating what Transco termed a "transportation

imbalance," the difference between receipts and deliveries under a transportation agreement.

Transco would have faced a large underrecovery had it set up TRI and TEMCO to repay

Transco in cash for the gas they sold at the market rate. To avoid such a loss, Transco arranged for

itssubsidiariesto repayTransco in gas. Transco then sold this gas to its captive customers at the filed

rate of $3.01 per Dth, despite the fact that TRI and TEMCO had originally paid market rates of

between about $2.23 and $2.55 per Dth for this gas. Transco thus created an inflated differential

between its actual and projected costs. This showed up as a projected under-recovery in the spring
 

4

In a May 1986 offer of settlement, Transco proposed to limit its recovery to $75 million,

rather than $81.3 million. 

 

5

In February 1987, another ALJ had issued a decision purporting to resolve the case. In

September 1987, FERC remanded to a different ALJ for a more thorough development of the

record. 

 

6Section 4(d) provides,

Unless the Commission otherwise orders, no change shall be made by any

natural-gas company in any such rate, charge, classification, or service, or in any

rule, regulations, or contract relating thereto, except after thirty days' notice to the

Commission and to the public. Such notice shall be given by filing with the

Commission and keeping open for public inspection new schedules stating plainly

the change or changes to be made in the schedule or schedules then in force and

the time when the change or changes will go into effect. The Commission, for

good cause shown, may allow changes to take effect without requiring the thirty

days' notice herein provided for by an order specifying the changes so to be made

and the time when they shall take effect and the manner in which they shall be filed

and published. 

of 1986 of $81.3 million.

Transco'sfiled rate of $3.01 per Dth was based upon projected costs calculated in early 1985.

It turned up the $81.3 million underrecovery when it figured its actual costs. These figures allegedly

revealed that Transco really paid about $3.30 per Dth for the gas it sold in 1985 and 1986. Under

the Commission's regulations, Transco was allowed to seek recovery of the difference between the

rate it collected and its actual costs by imposing a surcharge on its customers.

In April 1986, Transco requested the Commission to allow it to recoup a $75 million

"passthrough."4 The Commission permitted Transco to collect the refund, on a deferred basis, subject

to Transco's refunding whatever it collected upon the outcome of hearings on the propriety of the

amount. Transco collected about $48.5 million before the Commission issued its final order.

Anadministrative lawjudge ("ALJ") issued an initialdecision (called Phase I), addressing only

the issue of liability, on August 29, 1988,5concluding that Transco and its affiliates, TEMCO and

TRI, should be viewed as a single entity. Accordingly, sales by TRI and TEMCO were sales by

Transco, below-cost sales in violation of the filed rate requirements of section 4(d) of the NGA, 15

U.S.C. § 717c(d).6 Because some of these sales were to customers to whom Transco did not have
 

7Section 7(c) prohibits a gas company from selling gas in interstate commerce for resale

without an outstanding certificate. 

 

8Section 4(b) provides,

No natural-gas company shall, with respect to any transportation or sale of natural

gas subject to the jurisdiction of the Commission, (1) make or grant any undue

preference or advantage to any person or subject any person to any undue

prejudice or disadvantage, or (2) maintain any unreasonable difference in rates,

charges, service, facilities, or in any other respect, either as between localities or as

between classes of service. 

authorization to sell, it violated section 7(c) of the NGA, 15 U.S.C. § 717f.7

The ALJ based his single entity determination upon the fact that the composition of the

corporate hierarchies of the TRI, TEMCO, and Transco were almost identical. All of TRI's officers,

and all except for one of TEMCO's officers, also were Transco officers. Six of TEMCO's seven

directors were directors at Transco. TRI, TEMCO, and Transco all had the same address. TRI had

no employees, and TEMCO had but eighteen employees, all of whom were former Transco

employees. Corporate distinctions were ignored in dealings among the three groups, and no legal

instruments governed transactions among the three groups.

The ALJ next determined that the transactions at issue were sales, not "transportation

imbalances." Defining a sale as the "transfer of title for a price" (in accord with U.C.C. § 2-106(1)),

the ALJ found that one company (Transco through TRI and TEMCO) simply transferred its gas to

customers in exchange for money. The ALJ concluded that Transco deliberately used TRI and

TEMCO to circumvent the filed rate requirements ofsection 4(d) of the NGA. He refused to allow

a company bound by a filed rate to create a subsidiary to sell gas at lower rates.

The ALJ finally found that Transco discriminated against captive customers by providing

access to lower-price gas only to non-captive customers. The ALJ determined that Transco had not

met its burden of proving that the discrimination was not "undue" within the meaning ofsection 4(b)

of the NGA, 15 U.S.C. § 717c(b),8 and Transco had not shown that discriminatory pricing was the

only way to lower prices.

On December 15, 1989, the ALJissued a decision on remedies, called Phase II. First, the ALJ

adopted part of a remedy suggested by a Commission accountant, Robert Fulton, who recalculated
 

9After calculating interest, this amount becomes about $36 million. 

Transco's costs using the actual spot market prices TRI and TEMCO had paid instead of the $3.01

rate Transco claimed. This recalculation showed that Transco underrecovered about $2.6 million,

not $81.3 million. Since Transco already had agreed to lower its claim from $81 million to $75

million, effectively foregoing $6.3 million, Fulton's recalculation reduced Transco's claim to zero.

The ALJ ordered Transco to refund the $48.5 million passthrough it already had collected,

finding that the recalculation remedied Transco's violation of forcing its captive customers to

subsidize the illegal, market-price sales to non-captive customers. All customers that had paid the

passthrough would receive these refunds.

The ALJ based t he second part of the remedy upon a proposal by a Commission auditor,

Gloria Halstead, who suggested a refund of about $26 million9 of profits that Transco had realized

on the transportation of gas that it had sold illegally. She urged that Transco pay $15.7 million to

customers who had paid an average price for gas above the average price of all gas sold by Transco,

TEMCO, and TRI. She then urged that Transco refund the remaining $10.3 million pro rata to all

captive customers.

On September 12, 1990, the Commission issued an order affirming the ALJ's decisions. First,

the Commission affirmed the ALJ's finding that the contested transactions were sales, not

transportation imbalances. The Commission reasoned that the transactions had "all the hallmarks of

a sale," that Transco had developed and operated the affiliates solely as a vehicle to sell discounted

Transco gas, and that while Transco's transportation tariff required the elimination of imbalances

within thirtydays, the imbalance at issue lasted thirteenmonths. The Commission also concluded that

the ALJ correctly had relied upon the MPC cases in finding that Transco could not justify its

discriminatory pricing.

Finally, the Commission determined that the ALJ properly imposed remedies. They were not

penalties, nor did they deny Transco its right to recover its costs. The disgorgement simply forced

Transco to surrender "profitsrealized in the transportation of gasthat wassold under conditionsthat
 

10The ALJ also denied Transco recovery of $853,000 in costs associated with sales by its

subsidiaries to non-captive customers and ordered Transco to refund that amount. FERC

eliminated this part of the remedy. 

were unduly discriminatory and not sold at the pipeline's filed sales rate."10 The Commission also

denied Transco's request for oral argument.

At some point in late 1990 or early 1991, one of Transco's attorneys asked the Commission's

GeneralCounsel to hear oral argument onTransco'smotion for rehearing ofthe September 15, 1990,

order. Oral argument was heard on April 16, 1991.

On January 15, 1992, the Commission issued its order on rehearing, affirming part of its

previous order but reversing part as well. Specifically, the Commission affirmed its previous

determination that Transco had violated sections 4(b), 4(d), and 7(c) of the NGA because the

transactions in question were not certificated, were below the filed rate, and were unduly

discriminatory. The alleged benefits of the transactions and the circumstances affecting the gas

industry at the time did not overcome the unduly discriminatory nature of the transactions.

Moreover, Transco made no showing that the alleged benefits could not have been attained through

non-discriminatory pricing.

The Commission then addressed the remedies. It first retained the remedy requiring Transco

to forego recovery of $75 million in unrecovered gas costs because the remedy was "closely related"

to the illegal sales. Since Transco had calculated its $75 million in unrecovered costs by using only

Transco's WACOG, once the ALJ found that Transco, TRI, and TEMCO were but one company,

Transco had to compute its WACOG as that of TRI, TEMCO, and itself. Because this yielded

unrecovered costs that were $78.6 million lower than claimed, Transco was not entitled to any

recovery and had to refund the $48.5 million it already had collected. The Commission once again

rejected Transco's argument that itssales method inflicted no harm, finding instead that all customers

were harmed because they all eventually paid $3.01 per Dth for gas that had cost less.

The Commission, however, reversed itself on another part of the remedy, eliminating the

requirement that Transco disgorge the $26 million in profits from transportation revenues (the

Halstead remedy), reasoning as follows:
Any further equitable remedy is unnecessary, particularly in light ofthe market circumstances

and industry-wide problems under which Transco acted.... At the remedial stage of a

proceeding the Commission exercises its discretion to take into account a broader range of

factors, including equitable circumstances, than it does at the violation stage.... [T]he primary

reason for limiting the remedy to the recalculation of the allowable unrecovered gas costs is

a recognition of the circumstances at the time....

Finally, the Commission discussed its decision to hear oral argument in the case. It found that even

if Transco's attorney's oral request for oral argument was considered an ex parte communication, it

caused no harm. All parties were allowed to argue; no party requested rehearing of the order setting

oral argument. Two dissenting commissioners found that since the communication was procedural

in nature, unrelated to the merits, it was not an ex parte communication.

SeveralofTransco's customers, includingNorth Carolina Utilities Commission ("NCUC") and

Long Island Lighting Company ("LILCO"), filed motions urging rehearing of the Commission's

January 15 order. NCUC objected to the elimination of the $26 million transportation revenue

remedy. LILCO objected to the elimination of the allocation scheme that would have refunded more

than a pro rata share of refunds to captive customers most affected by price discrimination. LILCO

asked the Commission to allocate about $15 million of the $75 million remedy to those customers.

On March 16, 1992, the Commission issued another order denying both rehearing requests.

The Commission refused to reinstate the $26 million in transportation revenues because

around the time ofthe Transco transactions at issue here theCommission itself had authorized

other pipelinesto engage in specialmarketing programsthat had discriminatoryeffectssimilar

to those of Transco's transactions in this case. However, in the Maryland People's Counsel

cases the Court of Appeals found the Commission had not adequately justified the

discrimination. Although the specific Transco transactions here do not have the veneer of

Commission authorization, as those at issue in the Maryland People's Counsel cases,

nonetheless, it does not appear to be equitable to penalize Transco further for discrimination

similar to that which the Commission itself did not think was undue prior to the ruling of the

Court of Appeals in the Maryland People's Counsel cases.

On appeal to this court, Transco asks us to reverse the Commission's remedy disallowing its

recovery of $75 million. NCUC and LILCO urge us to revise the remedy. The Commission seeks

enforcement of its final order in full.

II.

Our jurisdiction to review the Commission's orders arises under section 19(b) of the NGA,

15 U.S.C. § 717r(b), which states that the Commission's factual findings shall be conclusive if
supported by substantial evidence. We review the Commission's orders to prevent an "arbitrary

result." Borden, Inc. v. FERC, 855 F.2d 254, 258 (5th Cir.1988).

The seminal case discussing an appellate court'sreview of the Commission's orders under the

NGA is Permian Basin Area Rate Cases, 390 U.S. 747, 790-92, 88 S.Ct. 1344, 1372-73, 20 L.Ed.2d

312 (1968), instructing reviewing courtsto examine (1) whether theCommission abused or exceeded

its authority; (2) whether each of the essential elements of the order is supported by substantial

evidence; and (3) whether the Commission has given reasoned consideration to each of the pertinent

factors in balancing the needs of the industry with the relevant public interests. Id. Our duty "is not

to supplant the Commission's balance of these interests with one more nearly to [our] liking, but

instead to assure [ourselves] that the Commission has given reasoned consideration to each of the

pertinent factors." Id. at 792, 88 S.Ct. at 1373. The " "ult imate issue' " in our review is the "

"requirement of "reasoned consideration." ' " Borden, 855 F.2d at 258-59 (quotingConsolidated Gas

Supply Corp. v. Federal Power Comm'n, 520 F.2d 1176, 1185 n. 45 (D.C.Cir.1975)).

A review of the record and the Commission's order convinces us that the result the

Commission reached is not arbitrary. The Commission gave careful and reasoned consideration to

the controversy before it. Substantial evidence supports its conclusion that Transco violated the

NGA, and the remedy the Commission imposed was well within its equitable powers.

III.

A.

Both the ALJ and the Commission determined that Transco had violated sections 7(c), 4(d),

and 4(b) of the NGA by selling gas to customers without the requisite certification, by selling gas at

a price below its filed rate, and by making unduly discriminatory sales.

The ALJ found, and the Commission agreed, that Transco, TRI, and TEMCO were a single

entity. Substantial evidence supports this finding. The composition of the three companies' corporate

boards was almost identical. All of TRI's officers also were Transco officers; six of TEMCO's seven

directors were on Transco's board. Transco, TRI, and TEMCO had the same address. In addition,

agreements among the three were wholly informal, and no legal documents governed transactions
among them. A Transco witness testified that TRI was "really operated as an adjunct" of Transco.

Transco's attorney told the ALJ that Transco created TRI and TEMCO "to sell at the spot price"

because, under the NGA, Transco could not.

In General Tel. Co. v. United States, 449 F.2d 846, 855 (5thCir.1971), we declared, "Where

the statutory purpose could thus be easily frustrated through the use of separate corporate entities,

the Commission is entitled to look through corporate form and treat the separate entities as one and

the same for purposes of regulation." (Citations omitted.) Under this test, the ALJ and the

Commission correctly looked behind corporate forms and found that the three companiesreallywere

one. For the Commission not to have investigated further would frustrate a statutory purpose by

allowing Transco to set up subsidiaries to sell gas at prices at which the company could not legally

sell.

Transco arguesthat the transactions at issue were transportation imbalances, not sales asthe

ALJ and theCommissionfound. Once again, substantial evidence supports the Commission's finding.

Title to the gas transferred from Transco to its customers. Once a customer received gas from

Transco, it paid money to Transco. In addition, while Transco's transportation tariff required

elimination of imbalances within thirty days, the "imbalance" here lasted thirteen months. Finally,

Transco never informed its customers of the existence of imbalances, even though the customers

would have been financially accountable for them.

Transco assertsthe Commission has no precedent for reconstituting the transactions asit did.

It claimsthat Granite State Transmission, Inc., 47 FERC ¶ 61,429 (1989), supports its position that

the transactions at issue were sales because in that case the agency found an imbalance when a

pipeline intentionallyhad overpurchased gasto pursue a lower-coststrategy. Granite State, however,

is distinguishable, as the imbalancesthere resulted from operational or accounting inefficiencies, not

an intentional marketing strategy as was the case here. So, we do not agree with Transco's assertion

that the Commission previously has approved of similar imbalances and now may not characterize

Transco's imbalances as sales.

The ALJ and the Commission found that Transco's sales of gas to non-captive customers at
a lower rate than to captive customers constituted undue price discrimination. Transco admitted to

the ALJ that discrimination existed: "[S]ure there is discrimination here. There is no question.

Captive customers were charged a different price than non-captive customers." Once the

Commission shows that discrimination exists, the pipeline has the burden of showing that the

discrimination was not undue. ANR Pipeline Co., 41 FERC ¶ 61,043, ¶ 61,126 (1987).

In MPC I, 761 F.2d 768, 770 (D.C.Cir.1985), the Commission sought approval of a plan that

would allow pipelines to sell gas to non-captive custom ers at cheaper prices than to captive

customers. While the pipelines argued that the plan would lead to reduced take-or-pay liability and

overall cheaper gas, the captive customers countered that the plan would increase their gas costs.

Id. at 772. The court refused to approve this plan, "since it would harm rather than help precisely

those customers—the ones vulnerable to pipeline monopoly [captive customers]—over which it was

the purpose of the Natural Gas Act to protect." Id. at 779. Additionally, in Associated Gas Distribs.

v. FERC, 824 F.2d 981, 1010 (D.C.Cir.1987), cert. denied, 485 U.S. 1006, 108 S.Ct. 1468, 99

L.Ed.2d 698 (1988), the court pointed out that in the sale of gas, "there is no economic justification

for charging different prices, based on the purchasers' differing access to substitutes...."

Transco's plan was quite similar to the plan rejected in MPC I. The alleged benefits—reduced

take-or-pay liability and overall cheaper gas—were similar. The price discrimination against captive

customers was the same. Transco knew the result of the previous cases decided by the District of

Columbia Circuit, yet still it chose to pursue its plan.

Transco did not make any showing that discriminatory pricing was the only way to achieve

the alleged benefits it sought, nor did it show why the cheaper gas could not be used to lower the

price of gas to the captive customers. Through reasoned decisionmaking and supported by

substantial evidence, the ALJ and the Commission properly concluded that Transco did not make the

high showing that the discrimination was not undue.

The ALJ's and the Commission's considered determinations that Transco violated the NGA

are supported by substantial evidence in the record. In short, because they logically concluded that

Transco, TRI, and TEMCO were one entity, sales by a subsidiary were sales by Transco. Many of
these sales were made to customers to which Transco could not sell because it lacked proper

certification, in violation of section 7(c). Transco, through TRI and TEMCO, sold gas at a rate

below itsfiled rate of $3.01 per Dth, in violation ofsection 4(d). Finally, Transco sold gas to captive

customers at a higher rate than to non-captive customers, engaging in undue discrimination in

violation of section 4(b).

B.

In Phase II of his opinion, the ALJ refused to allow Transco to pass through $75 million to

its customers and ordered Transco to disgorge $26 million in profitsit had made transporting illegally

sold gas. In its final order, the Commission upheld its refusal to pass through $75 million but rejected

the $26 million disgorgement.

Transco argues that the Commission properly eliminated the $26 million part of the remedy

but incorrectly continued to refuse the passthrough. Transco first attacks the continued imposition

of this remedy as contrary to Coastal Oil & Gas Corp. v. FERC, 782 F.2d 1249 (5th Cir.1986). It

arguesthat the remedytheCommission imposed here actually is a civil penalty, forbidden byCoastal.

In Coastal, 782 F.2d at 1253, we said that the NGA "does not give the Commission the authority to

impose civil penalties." (Citations omitted.) The Commission's remedy there required a seller of

natural gas first to refund all profits from its illegal sale of gas and then to refund "any payment

whatsoever" for the gas, including its costs. Id. While we rejected a remedy that called for a refund

of any payment made, we did point out that a remedy that restored the status quo ante and prevented

unjust enrichment was appropriate. Id.

Transco's argument that the remedy here violates our decision in Coastal is unavailing. In

Coastal, we held that a remedy that forces a company to give up all payment for gasis a penalty. The

remedy the Commission approved here does not force Transco to give up all payment for gasit sold.

Rather, it allowed Transco to recover its actual cost of gas,specifically taking into account the lower

prices TRI and TEMCO paid for gas, but it refused to allow Transco to recover money it lost when

it illegally sold gas at prices below its filed rate through TRI and TEMCO. This is a far cry from the

"civil penalty" we rejected in Coastal.
The final Commission order approving the $75 million remedy found an appropriate

relationship between the remedy and the violation, namely that the denial of Transco's $75 million

passthrough was closely related to Transco's illegal sale of gas. Customers who were harmed by

paying Transco's filed rate of $3.01 per Dth for gas that actually cost less will not be harmed further

by having to pay an extra $75 million to Transco.

Transco retortsthat the remedy isflawed because its customers did not overpay for gas,since

an examination of Transco's overallreceipts between April 1985 and April 1986 shows that Transco

received from all its cust omers about $80 million less than it paid for gas. It also asserts that its

customers benefitted from purchasing cheap gas from TRI and TEMCO at the outset of the

transactions, to the point that it counterbalanced any"harm" involved in pricing gasTRI and TEMCO

returned to Transco at the higher WACOG rate it later sold to customers and now tries to pass

through. Implicitly, Transco argues that it was trying to arrange creative legal solutions to a dilemma

brought on by an industry in a state of turmoil and uncertainty.

By contrast, the Commission and the ALJfound that Transco devised a strategy that allowed

it to bill its captive customers for losses it incurred when TRI and TEMCO sold gas below its filed

rate. They found, and the record confirms, that Transco incurred losses when TRI and TEMCO sold

gas to non-captive customers at the market rate, presumably because their actual cost of gas was

greater than this rate. When TRI and TEMCO repaid to Transco gas that Transco had "loaned" to

them, Transco accounted for this at a rate of $3.01 per Dth, instead of the actual lower cost of about

$2.40 per Dt h at which TRI and TEMCO received this gas. Transco thus inflated the cost of the

"return" gas in order to recover some of the cost of the gas it had sold illegally.

The Commission's reasoning then—that the illegal sales and the resulting purchases were

linked so that refusing to allow Transco the $75 million passthrough was a correct remedy—is based

upon substantial evidence in the record, evidence that showsthat Transco tried to inflate its WACOG

by recording the price of gas at a higher rate than it actually paid. The Commission's decision to limit

Transco's passthrough to the actual cost of the replacement gas thus was a reasoned one: The

Commission refused to penalize Transco's customers for losses Transco suffered as a result of its
damaging pre-existing contracts or its plan to escape them.

Transco's argument that the Commission should allow the passthrough because Transco

implemented its plan as a way of coping with chaotic industry situations is no more persuasive.

Although the Commission initially approved Transco'sfirst Special Marketing Program, it gave only

contingent approval to Transco's revised Discount Service Program. Final approval hinged on a

decision by the District of Columbia Circuit. Not content to wait for the requisite approval, Transco

implemented a variation of its Discount Service Program, selling gas through TRI and TEMCO in

April 1985.

In May 1985, the District ofColumbia Circuit issued itsfirst opinionsin the MPCcases. Even

though these decisionsrejected programs verysimilar to the one Transco devised, Transco continued

to sell gas through TRI and TEMCO. Despite this notice, Transco plowed ahead in its own effort

to address problems affecting it. In the face of its insistence to continue, without authorization, a

program disallowed by the court of appeals, Transco cannot now be heard to say that an industry's

state of flux excuses its illegal behavior.

IV.

Two further criticisms of the Commission's remedy remain. LILCO argues that the decision

to order Transco to refund the $48.5 million it already has collected is not a reasoned decision. It

asserts that the refunds will be made pro rata to some customers who paid less than the captive

customers. Therefore, the captive customers continue to be denied benefits from the discounted

sales. LILCO maintains, for example, that because it paid an average price of $2.94 per Dth for its

gas, while the average price for all Transco gas was $2.87 per Dth, it paid $2,893,436 more than it

should have. A pro rata remedy, LILCO insists, does not redress its actual harm.

Although LILCO's argument hassome superficial appeal, it does not defeat the Commission's

response. Transco already has collected about $48.5 million from specific customers. In its order,

the Commission statesthat "fairness and equity require that the surcharge amounts already collected

shall be refunded to the Transco customers who paid such amounts." The customers who paid the

surcharge should recover what they paid. This is logical as well as legal, as "the Commission has
 

11NCUC argues that where the facts demonstrate injury to the customer, FERC is obliged to

impose a remedy. Unfortunately, the cases it cites do not support such a conclusion. In Atlantic

Refining Co. v. Public Serv. Comm'n, 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959), the

Court was not concerned with providing a remedy for harm to customers. It instead focused on

the jurisdiction and discretion of the Federal Power Commission under § 7(e) of the NGA. Id. at

broad authority to fashion equitable remedies in a variety ofsettings." Columbia Gas Transmission

Corp. v. FERC, 750 F.2d 105, 109 (D.C.Cir.1984).

The ALJinitially included a second remedy, ordering Transco to disgorge about $26 million

in net transportation revenuesit had collected for carrying gasthat it then sold illegally. About $15.7

million would go to those customers who had paid discriminatory prices and $10.3 million would go

to customers who paid the filed rate. Although the Commission approved of this remedy in its first

order, finding that it simply required Transco to disgorge profits on transportation of illegally sold

gas, it eliminated this remedy in its January 15, 1992, and March 16, 1992, orders, reasoning that

market circumstances in 1985 were confusing and that the Commission originally thought schemes

like Transco's were acceptable.

NCUC contendsthat thisis not reasoned decisionmaking. It maintains that this was the only

remedy specifically geared to provide restitution for victims of price discrimination, and the

Commission arbitrarily eliminated it without articulating any proper justification; its elimination fails

to leave any remedy for those directly affected by Transco's illegal actions. NCUC also attacks

FERC's "market circumstances" reasoning, pointing out that Transco started its programwithout the

Commission's approval, in contrast to other pipelinesthatstarted their programs earlierthanTransco,

yet still sought the Commission's approval.

The Commission has broad discretion to fashion a remedy. Columbia Gas Transmission

Corp., 750 F.2d at 109. See also Mesa Petroleum Co. v. Federal Power Comm'n, 441 F.2d 182, 186

(5th Cir.1971) (The Commission's predecessor, the Federal Power Commission, had authority to

structure remedy.). In this case, it rationally and reasonably decided that the $75 million remedy

sufficiently addressed any harm. It was allowed to take the market conditions into account in

determining that "limiting the remedyto the recalculation ofthe allowable unrecovered gas costs" was

in best keeping with the chaotic circumstances of the time.11
380, 79 S.Ct. at 1249. Similarly, in Public Serv. Comm'n v. FERC, 543 F.2d 757, 811

(D.C.Cir.1974), cert. denied, 424 U.S. 910, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976), the court held

that when refunds are due, they must be made promptly. The court did not find an affirmative

duty to order refunds. Finally, Gulf Oil Corp. v. FERC, 706 F.2d 444 (3d Cir.1983), cert.

denied, 464 U.S. 1038, 104 S.Ct. 698, 79 L.Ed.2d 164 (1984), does not apply to our case. Gulf

Oil concentrates on the support in the record for FERC's calculation of a refund, not the

mandatory nature of refunds. Id. at 447.

In Towns of Concord, Norwood, & Wellesley v. FERC, 955 F.2d 67, 72

(D.C.Cir.1992), the court addressed the question of whether sections of the Federal

Power Act (parallel to the NGA sections applicable here) confer on FERC the discretion

to refuse to order refunds when a company has violated the filed rate doctrine and passed

on costs to its customers. The court decided that FERC was not obligated to impose a

refund. Id. at 76. It "refused to constrain agency discretion by imposing a presumption in

favor of refunds.... The agency need only show that it "considered relevant factors and ...

struck a reasonable accommodation among them.' " Id. (quoting Los Cruces TV Cable v.

Federal Communications Comm'n, 645 F.2d 1041, 1047 (D.C.Cir.1981)). 

Finally, NCUC asserts that illicit ex parte contacts between Transco's attorneys and the

Commission's attorneys led to the Commission's hearing oral argument on a petition for rehearing.

NCUC implies that secret information passed hands, leading to the Commission's unusual grant of

oral argument. NCUC continues that some undisclosed "critical secret documents" show that

attorneys for Transco and the Commission discussed something more than just a request for oral

argument.

 Transco and the Commission reject this argument. Transco asserts that its attorney simply

reiterated his prior written request for oral argument. The Commission points out that the request

led only to a proceduralresult—an opportunity for allsidesto present their arguments orally. NCUC

gives no evidence whatsoever to bolster its position that something else transpired. In its opinion

resolving the ex parte issue, the Commission concluded that even if it treated the communication as

ex parte, no harm resulted, and no damage was done to the decisionmaking process.

Although the request for oral argument should have been in writing, with notice to all parties,

we agree with the Commission's determination that NCUC provides no evidence that any improper

activity took place. Nor was NCUC prejudiced in any way. NCUC was allowed to file briefs and

argue its case. The Commission correctly chose to hear oral argument.

V.

In conclusion, we find that substantial evidence supports the reasoned Commission's order.
Transco violated sections 4(b), 4(d), and 7(c) of the NGA. As a remedy, the Commission approved

part of an ALJ's opinion refusing to allow Transco to passthrough $75 million to its customers. The

Commission also eliminated an additionalremedy that ordered Transco to disgorge an additional $26

million. This was all within FERC's discretion, supported by substantial evidence, and based upon

reasoned decisionmaking. We therefore DENY t he petitions for review and AFFIRM the

Commission's order in full.