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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>No. 99-1047 <br> <br>                 TOWN OF NORWOOD, MASSACHUSETTS, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>  NEW ENGLAND POWER COMPANY, NEW ENGLAND ELECTRIC SYSTEM (NEES), <br>      PACIFIC GAS & ELECTRIC COMPANY, and PG&E CORPORATION, <br> <br>                      Defendants, Appellees. <br>                                  <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>            [Hon. Patti B. Saris, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                    Boudin, Stahl and Lipez, <br>                                 <br>                        Circuit Judges.  <br>                                 <br>                                 <br>                                 <br>     Charles F. Wheatley, Jr. with whom Wheatley & Ranquist, <br>Kenneth M. Barna, Alan K. Posner and Rubin & Rudman were on brief <br>for plaintiff. <br>     Edward Berlin with whom Robert V. Zener, Swidler Berlin <br>Shereff Friedman, LLP, John F. Sherman, III, Associate General <br>Counsel, The NEES Companies, David H. Erichsen, Peter A. Spaeth and <br>Hale and Dorr LLP were on brief for appellees New England Power <br>Company and New England Electric System (NEES). <br>     Steven W. Phillips with whom Richard M. Brunell, Robert L. <br>Bocchino, Jr. and Foley, Hoag & Eliot LLP were on brief for <br>appellees Pacific Gas & Electric Company and PG&E Corporation. <br> <br> <br> <br> <br>February 2, 2000 <br> <br> <br> <br>                                 <br>                                 <br>  BOUDIN, Circuit Judge.  The Town of Norwood, <br>Massachusetts ("Norwood") filed a complaint against New England <br>Power Company ("New England Power") and others alleging antitrust <br>violations and breach of contract.  The district court dismissed <br>the complaint and Norwood now appeals.  This decision assumes a <br>familiarity with our decision today in Nos. 98-1847 et al., Town of <br>Norwood v. FERC, resolving petitions filed by Norwood and another <br>challenging orders of the Federal Energy Regulatory Commission <br>("FERC") in related administrative proceedings. <br> <br>                         I.  THE HISTORY <br>  To summarize the facts, New England Power is a major <br>wholesaler of electric power in New England, and Norwood owns and <br>operates a municipal utility that distributes retail electric power <br>to residents and businesses in the town.  For some years Norwood <br>purchased its power at wholesale from Boston Edison Company, but in <br>the 1970s Norwood sought instead to purchase its power from New <br>England Power and have that power delivered over the intercity <br>transmission network of Boston Edison.  Boston Edison and New <br>England Power resisted, but the matter was resolved by settlement <br>after Norwood brought an antitrust suit against them. <br>  The settlements, arrived at in 1980 and 1983, included <br>the agreement of Boston Edison to "wheel" power for Norwood over <br>Boston Edison's transmission network and the agreement of New <br>England Power to furnish all of Norwood's requirements for <br>electricity through October 31, 1998, under New England Power's <br>FERC Tariff No. 1 "as [it] may be amended from time to time."  <br>Under that tariff, New England Power then supplied power to its own <br>retail affiliates such as Massachusetts Electric Company ("Mass <br>Electric").  The decree in the antitrust case directed that the <br>annexed settlement agreement and power contract were "approved as <br>a settlement of this case and shall be carried out by both <br>parties." <br>  The parties amended the power contract in 1989 to give <br>Norwood an option to extend the minimum term, and it then exercised <br>the option to extend the contract to at least October 31, 2008.  <br>Each side could terminate on seven years' advance notice.  New <br>England Power had somewhat similar requirements contracts with its <br>own affiliates and with other independent retailers embodying <br>similar lengthy periods of notice before termination.  The function <br>of such lengthy notice periods is to permit stability for each <br>side; the wholesaler, for example, ordinarily makes investments or <br>other arrangements to assure a stable supply of power either by <br>generation, purchase contracts of its own, or both.  See generally <br>Kentucky Utils. Co. v. FERC, 766 F.2d 239, 243 (6th Cir. 1985). <br>  Beginning in December 1996, New England Power made a set <br>of regulatory filings to restructure itself and to revise its <br>existing tariffs for wholesale power sales in Massachusetts and <br>Rhode Island.  These filings, described in more detail in our <br>companion decision, had several aims:  approval by FERC of the sale <br>of New England Power's non-nuclear generating facilities to a west <br>coast utility; the release of New England Power affiliates like <br>Mass Electric from their long-term obligations to purchase their <br>power from New England Power; and the restructuring of New England <br>Power's wholesale rates to affiliates and interested purchasers to <br>facilitate customer choice and market-based pricing at both the <br>wholesale and retail level. <br>  To accommodate policies of both the Massachusetts and <br>Rhode Island state utility commissions, New England Power also <br>proposed a temporary, non-cost-based wholesale offering called <br>"standard offer service."  This temporary offering was to provide <br>power at predetermined rates, increasing rapidly over a multi-year <br>period, to those retailers required by the states to offer <br>counterpart retail standard offer rates to their own customers; the <br>states were introducing competition at the retail level and wanted <br>retail purchasers to have an initial low-rate offering as a backup <br>while competitive sources of supply developed for them, e.g., In re <br>Massachusetts Elec. Co., Mass. D.P.U. 96-25, at 23-25 (Feb. 26, <br>1997); see also Mass. Gen. Laws ch. 164,  1B(b); R.I. Gen. Laws  <br>39-1-27.3.  Such retail sellers include Mass Electric and other <br>investor-owned retailers but not municipalities like Norwood, which <br>have no obligation to allow competitive access to their customers.  <br>See Mass. Gen. Laws ch. 164,  47A. <br>  The prospective sale by New England Power of its low-cost <br>hydroelectric and fossil generating facilities posed a potential <br>problem for existing requirements-contract purchasers like Norwood, <br>since New England Power's existing tariff rates (filed with FERC <br>and incorporated by reference into power contracts) were normally <br>amended to provide for price increases as New England Power's costs <br>went up.  To meet this objection, New England Power proposed to <br>implement a rate freeze that would prevent increases in wholesale <br>rates for its requirements-contract customers, including Norwood, <br>during the term of their agreements. <br>  While the initial filings of various proposals were under <br>consideration by FERC, Norwood, on April 14, 1997, filed the <br>present suit in the district court; this complaint, as later <br>amended, named as defendants New England Power, its parent New <br>England Electric System, and two companies that were part of the <br>California-based parent utility system (collectively "PG&E") whose <br>subsidiary ("USGenNE") was to acquire New England Power's non- <br>nuclear generating facilities in New England.  Between the original <br>filing of the complaint and its later substantial revision through <br>two amendments, additional events took place that are important to <br>the present action. <br>  First, in the FERC proceedings, the Commission ultimately <br>approved a settlement agreement permitting (on payment of contract <br>termination charges) early termination of requirements contracts by <br>the affiliates of New England Power, New England Power Co., 81 <br>F.E.R.C.  61,281 (1997), reh'g denied, 83 F.E.R.C.  61,265 <br>(1998); approved the offering of the new backup wholesale standard <br>offer service, id.; approved the transfer of generating facilities <br>and associated contracts to USGenNE, New England Power Co., 82 <br>F.E.R.C.  61,179 (1998), reh'g denied, 83 F.E.R.C.  61,275 <br>(1998); and agreed to the FERC Tariff No. 1 rate freeze that would <br>prevent post-divestiture rate increases to purchasers who chose to <br>avoid the termination charge by continuing as wholesale customers <br>of New England Power under their existing contracts, id. <br>  Second, regarding itself as disadvantaged by the <br>wholesale standard offer service made available to New England <br>Power's retail affiliates--whom Norwood regards as retail <br>competitors--Norwood notified New England Power on March 4, 1998, <br>that it was switching to a different wholesale supplier, Northeast <br>Utilities; a tariff and agreement to that effect were filed with <br>FERC and have gone into effect.  Two weeks later, on March 18, <br>1998, New England Power filed a revised FERC Tariff No. 1 <br>permitting its non-settling wholesale customers like Norwood to <br>terminate their contracts early, and on only 30 days' notice, with <br>the condition that the customers pay a large contract termination <br>charge.  The charge was calculated based on the revenues that New <br>England Power would have expected to collect had a customer <br>continued to pay the now-frozen tariff rate through the contract <br>term, less the expected costs avoided by not providing service. <br>  As finally amended in April 1998, Norwood's complaint <br>made a number of separate claims.  In count 1, it charged that New <br>England Power had violated the prior 1983 antitrust decree and <br>power contract by divesting itself of its generating facilities, <br>shifting Norwood to a fixed rate based on pre-divestiture costs, <br>and proposing to serve its own affiliates on a quite different <br>basis than the fixed rate (namely, market-based rates subject to <br>the availability of the initially low-cost wholesale standard offer <br>service). <br>  The remaining three counts in Norwood's second amended <br>complaint charged violations of sections 1 and 2 of the Sherman <br>Act, 15 U.S.C.  1-2, and sections 3 and 7 of the Clayton Act, 15 <br>U.S.C.  14, 18.  The company attacked the contract termination <br>charge imposed on Norwood under the revised FERC No. 1 Tariff as an <br>illegal restraint of trade, an unlawful tying arrangement, and, in <br>combination with the standard offer rates, an illegal price <br>squeeze; it alleged a conspiracy to fix prices in the wholesale <br>market; and it alleged a lessening of competition from the transfer <br>of New England Power's non-nuclear generating assets to USGenNE. <br>  After a motion by Norwood for partial summary judgment <br>and motions to dismiss by the defendants, the district court on <br>September 28, 1998, entered a decision dismissing the complaint <br>under Fed. R. Civ. P. 12(b)(6).  Town of Norwood v. New England <br>Power Co., 23 F. Supp.2d 109 (D. Mass. 1998).  In doing so, the <br>court considered the allegations in the complaint, documents <br>attached to it, and matters of public record including FERC <br>decisions.  In substance, the court rested its decision on FERC's <br>scrutiny of the same transactions, the so-called filed rate <br>doctrine, and the terms of the settlement agreement and power <br>contract between Norwood and New England Power. <br> <br>                         II.  DISCUSSION <br>  1.  At the threshold of this appeal is a substantial <br>claim by New England Power that a procedural error by Norwood <br>deprives us of jurisdiction to consider Norwood's main claims.  <br>After the district court entered its decision and judgment, Norwood <br>filed a timely motion under Fed. R. Civ. P. 59(e) to alter or amend <br>the judgment; after this was denied, it filed a notice of appeal in <br>this court challenging the denial.  Norwood then filed a motion <br>under Fed. R. Civ. P. 60(b) for relief from the judgment on grounds <br>of newly discovered evidence and, in the alternative, moved for a <br>second time under Fed. R. Civ. P. 59(e) to alter or amend the <br>judgment. <br>  The district court denied both of the new motions, and <br>Norwood then filed an amended notice of appeal challenging the <br>denial of its post-judgment motions; but Norwood did not mention in <br>either its original or amended notice of appeal the district <br>court's original decision and judgment.  New England Power points <br>out that Norwood's brief is directed almost entirely to the <br>original decision and judgment from which it says that Norwood did <br>not appeal. <br>  The law on this issue is less clear than the cases claim <br>it to be.  On the one hand, courts often say that a notice of <br>appeal that names only a post-judgment order as the subject of the <br>appeal does not bring the original judgment before the appellate <br>court.  E.g., Mariani-Giron v. Acevedo-Ruiz, 945 F.2d 1, 3 (1st <br>Cir. 1991).  On the other hand, because in such cases the failure <br>to name the underlying judgment is usually a slip of the pen and <br>rarely causes any prejudice to the other side, courts then go <br>through endless contortions to rescue the technically defaulted <br>portion of the appeal.  See 11 Wright, Miller & Kane, Federal <br>Practice and Procedure  2818, at 192-93 & n.11 (2d ed. 1995) <br>(collecting cases). <br>  Sometimes this resurrection can be justified in common- <br>sense terms where, for example, the caption of the notice refers to <br>a post-judgment order but the body also refers to the underlying <br>judgment, see In re San Juan Dupont Plaza Hotel Fire Litig., 45 <br>F.3d 564, 567 (1st Cir. 1995), or where the appellant previously <br>filed a premature notice of appeal challenging the underlying <br>judgment, ineffective by itself but illustrating an intent to <br>attack the judgment, see Foman v. Davis, 371 U.S. 178, 180-82 <br>(1962); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 839-40 (1st Cir. <br>1993), cert. denied, 511 U.S. 1018 (1994).  The latter is what <br>occurred in Foman, relied upon by Norwood in this case.  But <br>Norwood did not file a premature notice of appeal designating the <br>original judgment.  Cf. Gottesman v. INS, 33 F.3d 383, 388 (4th <br>Cir. 1994). <br>  However, Norwood's timely first motion to alter or amend <br>the judgment--from denial of which Norwood did file a timely <br>appeal--is not an ordinary Rule 59(e) motion limited to a narrow <br>criticism or new objection.  Instead, the motion covers (in 59 <br>pages) more or less the same points that Norwood had earlier made <br>to the district court and now repeats to us; indeed, the district <br>court tersely denied the motion relying on its original decision.  <br>Under these circumstances, it seems to us that Norwood's appellate <br>arguments are within the scope of its Rule 59(e) motion and are <br>properly before us on appeal from the denial of that motion. <br>  2.  Turning to the merits, the first count in Norwood's <br>complaint--effectively, a contract claim--rests on its assertion <br>that New England Power breached its 1983 promises.  According to <br>Norwood, New England Power was obligated to supply Norwood with <br>power during the contract term, on a cost-justified, FERC-regulated <br>basis, at the same rate level at which power was offered to <br>affiliates of New England Power.  Norwood asserts that New England <br>Power breached these supposed promises by selling its low-cost <br>generation facilities, providing Norwood with a substitute fixed <br>rate based on pre-divestiture costs, and switching to market-based <br>and standard offer rates for sales to its own affiliates. <br>  The explicit target of this count is the contract <br>termination charge imposed by the amended FERC Tariff No. 1 on non- <br>settling purchasers who choose to terminate their requirements <br>contracts without giving the requisite multi-year notice.  Since <br>other Tariff No. 1 purchasers (including the affiliates) appear to <br>have settled, Norwood may be the only purchaser left in this <br>category--although the other purchasers will also pay contract <br>termination charges computed on a somewhat different basis.  <br>Norwood says the alleged breach by New England Power excuses <br>Norwood's own abandonment of the contract, thereby avoiding a <br>termination charge allegedly amounting to about $78 million over <br>the remainder of the ten-year period. <br>  The district court rejected Norwood's contract claim on <br>two different grounds.  It said that the claim was barred by the <br>filed rate doctrine which--in the aspect pertinent here--limits <br>attacks outside the regulatory process on tariffed rates filed with <br>federal regulatory agencies.  E.g. Arkansas La. Gas Co. v. Hall, <br>453 U.S. 571 (1981).  The district court also ruled, in the <br>alternative, that the agreements were not breached by New England <br>Power, because all it had promised to do was to provide FERC Tariff <br>No. 1 rates to Norwood, which New England Power continued to do <br>until Norwood itself renounced its requirements contract in March <br>1998.  Town of Norwood, 23 F. Supp.2d at 119. <br>  We agree with Norwood that the filed rate doctrine does <br>not bar Norwood's contract claim.  It is true that, absent some <br>exception, Norwood could not use its contract claim as a vehicle to <br>attack the validity of the FERC tariff imposing the termination <br>charge; the filed rate doctrine protects the agency's authority <br>over tariffed rates and prefers a prevailing tariff (unless set <br>aside by the agency) over any separate contractual arrangements, <br>AT&T v. Central Office Tel., Inc., 524 U.S. 214, 222-24 (1998).  <br>While the termination charge is not a traditional "rate" for <br>continuing service, the filed rate doctrine sweeps more broadly and <br>governs ancillary conditions and terms included in the tariff.  Id. <br>at 224-25. <br>  Yet, under the amended tariff itself, whether a <br>termination charge applies depends on whether there is a <br>requirements contract in force.  And FERC has at most approved only <br>the generic terms of the amended tariff; it has not determined <br>whether Norwood's prior obligation to buy from New England Power <br>was vitiated by a breach on the part of New England Power, New <br>England Power Co., 84 F.E.R.C.  61,175, at 61,920 (1998), or some <br>other means.  See note 2, above.  Perhaps it could have decided <br>such issues, but it often leaves contract breach issues to courts, <br>Southern Cal. Edison Co., 85 F.E.R.C.  61,023, at 61,069 (1998), <br>and it appears to have done so here.  Thus, the tariff may be <br>protected by the filed rate doctrine but whether the tariff applies <br>to Norwood depends on the extent of Norwood's contractual <br>obligations. <br>  This brings us to the district court's alternative <br>holding that New England Power did not breach the contract.  The <br>facts claimed by Norwood to be such a breach are undisputed; they <br>are the sale of facilities, the new terms for other customers, and <br>the freezing of Norwood's rate.  The question is whether those acts <br>comprised a breach of contractual terms, an issue of law to be <br>determined from the words of the contract, if they are unambiguous, <br>and otherwise by the words along with whatever extrinsic evidence <br>may cast light on the parties' intent.  Bank v. IBM, 145 F.3d 420, <br>424 (1st Cir. 1998).  Here, the district court found that the words <br>alone refuted Norwood's claim.  Town of Norwood, 23 F. Supp.2d at <br>119. <br>  The original 1983 power contract is pithy in its <br>pertinent language:  New England Power promises to supply Norwood <br>its requirements pursuant to the former's FERC No. 1 Tariff, "filed <br>with FERC, as [it] may be amended from time to time."  At the time, <br>New England Power's FERC Tariff No. 1 was its general cost-based <br>offering of power to wholesale customers.  But nothing in the <br>contract explicitly required that the power be furnished from any <br>specific set of generating facilities, or that New England Power's <br>own affiliates continue to buy their power under this tariff, or <br>that the rates be based upon costs calculated under any specific <br>cost formula covering any specific period. <br>  Norwood argued in the district court that the agreement's <br>terms were ambiguous and, specifically, that "FERC Tariff No. 1" <br>had a specialized meaning and reflected implicit conditions, i.e., <br>that the rates be based on current costs and used equally for New <br>England Power's own affiliates.  But while extrinsic evidence can <br>be admitted to show ambiguity and to resolve it, see Donoghue v. <br>IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir. 1995), <br>Norwood's affidavits show only that its aim was to achieve those <br>goals and that FERC Tariff No. 1 was at that time structured as a <br>traditional utility offering.  Accordingly, we agree with the <br>district court that the contract did not contain a promise that <br>ownership of New England Power's facilities or equality of <br>treatment vis  vis New England Power's affiliates would endure. <br>  Probably Norwood assumed at the time that the world would <br>continue as before, but there is an important difference between <br>assumptions that exist when a contract is signed and promises built <br>into a contract comprising a commitment.  Under certain <br>circumstances, the mere failure of underlying assumptions can <br>release a party from a contract--one specific doctrine is <br>frustration of purpose--but it would take a developed line of <br>reasoning, legal precedent, and specific facts showing the <br>centrality of the assumptions and the extent to which their <br>alteration makes it unjust to hold the unhappy party to its own <br>promises.  See generally II Farnsworth, Farnsworth on Contracts ch. <br>9 (2d ed. 1998). <br>  Norwood has made no such developed argument based on <br>disappointed assumptions.  The argument would probably be uphill in <br>any event since New England Power has continued to offer Norwood <br>the gist of what it was promised:  a cost-based, long-term supply <br>of electricity, subject to FERC regulation.  In all events, it is <br>normally not error at all, let alone plain error, for a court to <br>ignore a possible claim or defense that a party fails to proffer <br>and pursue.  E.g., Amcel Corp. v. International Executive Sales, <br>Inc., 170 F.3d 32, 35-36 (1st Cir. 1999).   <br>  3.  This brings us to Norwood's pure antitrust claims, <br>which are almost certainly weaker but (ironically) less easily <br>disposed of on a motion to dismiss.  Although there are numerous <br>strands in Norwood's antitrust claims, two are of foremost <br>importance.  One is a claim, primarily based on section 2 of the <br>Sherman Act, that New England Power has engineered a "price <br>squeeze" designed to undercut Norwood's ability to compete with New <br>England Power's own retail affiliates.  The other is a claim under <br>section 7 of the Clayton Act that New England Power's sale of <br>assets threatens to increase wholesale power prices in New England <br>for purchasers like Norwood. <br>  The district court dismissed all of Norwood's antitrust <br>claims based on the filed rate doctrine.  As already noted, one <br>aspect of the doctrine protects a party from civil claims based on <br>its implementation of tariffed rates (and ancillary tariffed <br>matters) that are directly regulated by federal agencies like FERC.  <br>Its origin is the now-ancient Keogh v. Chicago & N.W. Ry. Co., 260 <br>U.S. 156 (1922); but not very long ago the Supreme Court reaffirmed <br>the Keogh doctrine in Square D Co. v. Niagara Frontier Tariff <br>Bureau, 476 U.S. 409 (1986), despite Judge Friendly's view that the <br>doctrine had outlived its usefulness, Square D Co. v. Niagara <br>Frontier Tariff Bureau, 760 F.2d 1347 (2d Cir. 1985). <br>  Norwood's price squeeze claim, in particular, rests on <br>the combined effect of two different tariffs:  the contract <br>termination charge imposed on Norwood under New England Power's <br>amended FERC Tariff No. 1; and the wholesale standard offer rate <br>that was offered to New England Power's affiliates but not to <br>municipalities like Norwood, a tariffed offering originally filed <br>by New England Power and assumed by USGenNE as part of the FERC- <br>approved asset sale.  Both tariffs are not only subject to FERC <br>regulation under the "just and reasonable" standard imposed by the <br>Federal Power Act, 16 U.S.C.  824d(a), but they were also actively <br>at issue in the FERC proceedings described in our companion <br>decision. <br>  The question, then, is whether Norwood can establish a <br>pertinent limitation on or exception to the filed rate doctrine.  <br>Norwood's broadest claim is that the doctrine should not apply to <br>antitrust cases involving price squeezes, a view endorsed in some <br>measure by several circuits, City of Kirkwood v. Union Elec. Co., <br>671 F.2d 1173, 1177-79 (8th Cir. 1982), cert. denied, 459 U.S. 1170 <br>(1983); City of Groton v. Connecticut Light & Power Co., 662 F.2d <br>921, 929 (2d Cir. 1981), and by the always enlightening Areeda <br>treatise, IA Areeda & Hovenkamp, Antitrust Law  244e (rev. ed. <br>1997).  But the Supreme Court has itself applied the filed rate <br>doctrine to antitrust claims generally, e.g., Square D Co., 476 <br>U.S. 409, and most of the lower court cases that have excluded <br>particular price squeeze claims appear to have done so on grounds <br>that do not apply here. <br>  Specifically, the traditional price squeeze involves a <br>defendant who as monopolist supplies the plaintiff at one level <br>(e.g., wholesale), competes at another (e.g., retail), and seeks to <br>destroy the plaintiff by holding up the wholesale price to the <br>plaintiff while depressing the retail price to common customers.  <br>See Town of Concord v. Boston Edison Co., 915 F.2d 17, 18 (1st Cir. <br>1990), cert. denied, 499 U.S. 931 (1991).  A few decisions, like <br>City of Kirkwood, have rejected the filed rate defense in such <br>situations where the monopolist supplier was subject to federal <br>regulation at the wholesale level but not at the retail level.  671 <br>F.2d at 1177-79.  But the main concern--that no regulatory agency <br>could afford full relief--is inapposite here because FERC regulates <br>both of the tariffs in question.  See IA Areeda & Hovenkamp, supra, <br> 244e, at 90-91. <br>  Next, Norwood says that the filed rate doctrine should <br>not apply where the "regulated" rates have been left to the free <br>market, the general direction in which FERC is moving.  Of course, <br>if New England Power's rates were truly left to the market, with no <br>filing requirement or FERC supervision at all, the filed rate <br>doctrine would by its terms no longer operate.  See IA Areeda & <br>Hovenkamp, supra,  241c, at 30; cf. Carnation Co. v. Pacific <br>Westbound Conference, 383 U.S. 213 (1966).  But unlike some other <br>regulatory agencies, see IA Areeda & Hovenkamp, supra,  251i, at <br>161-62, FERC is still responsible for ensuring "just and <br>reasonable" rates and, to that end, wholesale  power rates continue <br>to be filed and subject to agency review, 16 U.S.C.  824d.   <br>  To be sure, FERC now waives its requirement that filed <br>rates and rate increases be accompanied and justified by cost-of- <br>service data, 18 C.F.R.  35.12, 35.13, where the applicant has <br>shown that it lacks, or has mitigated, market power in generation <br>and transmission.  See generally Louisiana Energy & Power Auth. v. <br>FERC, 141 F.3d 364, 365 (D.C. Cir. 1998).  But whether or not such <br>data was submitted, the relevant rates and termination charge were <br>individually filed with FERC and are subject to ongoing FERC <br>regulation.  It is the filing of the tariffs, and not any <br>affirmative approval or scrutiny by the agency, that triggers the <br>filed rate doctrine.  See Square D Co., 476 U.S. at 417; <br>Mississippi Power & Light Co. v. Mississippi, 487 U.S. 354, 374 <br>(1988). <br>  Further, FERC did address the concerns presented by <br>Norwood and others about the potential anticompetitive effects of <br>the filings (albeit not in trial-type hearings).  FERC found the <br>contract termination charge to be in principle a reasonable <br>recovery of expected revenues less avoided costs.  New England <br>Power Co., 83 F.E.R.C.  61,174, at 61,723 (1998).  As for the <br>wholesale standard offer rate schedule, FERC explained its origins <br>in state regulatory policy and was apparently unpersuaded by <br>Norwood's objections.  New England Power Co., 82 F.E.R.C.  61,179, <br>at 61,664-65 (1998); see also New England Power Co., 83 F.E.R.C.  <br>61,265 (1998).  The agency left the door open for future <br>administrative challenges to both the contract termination charge <br>and the wholesale standard offer rate.  New England Power Co., 83 <br>F.E.R.C.  61,174, at 61,724; New England Power Co., 81 F.E.R.C.  <br>61,281, at 62,371 (1997). <br>  Norwood also objects that the filed rate doctrine only <br>protects against damage claims and, it says, in this instance it <br>seeks declaratory and injunctive relief; apparently it contemplates <br>relief that would block or nullify the termination charge and <br>possibly require the wholesale standard offer rates to be made <br>available to it.  It is quite true that one rationale of the filed <br>rate doctrine is to prevent discriminatory damage awards to <br>different customers, Keogh, 260 U.S. at 163, and that in at least <br>two cases the Supreme Court carved out a potential exception for <br>antitrust injunctive relief, see Square D Co., 476 U.S. at 422 & <br>n.28; Georgia v. Pennsylvania Ry. Co., 324 U.S. 439, 454-62 (1945). <br>  But in Georgia and Square D, the Court was concerned with <br>possible price-fixing conspiracies that conceivably could have been <br>enjoined without tampering with the tariffed rates themselves, see <br>Georgia, 324 U.S. at 455; the relief would merely assure non- <br>collaborative individual filings by the supposed conspirators.  <br>Here, any meaningful relief as to the price squeeze would require <br>the alteration of tariffs--and not merely tariffs subject to <br>regulation but tariffs actually scrutinized repeatedly by FERC in <br>the companion-case proceedings.  In part, the rationale for the <br>filed rate doctrine is to protect the exclusive authority of the <br>agency to accept or challenge such tariffs, Arkansas La. Gas Co. v. <br>Hall, 453 U.S. 571, 577-78 (1981)--a goal that would be undermined <br>by Norwood's distinction in the present case.  <br>  Norwood also argues that the doctrine should not apply to <br>block a claim brought by a plaintiff who is a competitor of the <br>defendant--a view basically endorsed by the Areeda treatise, see IA <br>Areeda & Hovenkamp, supra,  247c.  But the lower courts are both <br>divided and confused in their discussion of this issue; and there <br>are more than two sides.  Attempts to reason from the few arguably <br>relevant Supreme Court cases, see AT&T v. Central Office Tel., <br>Inc., 524 U.S. 214 (1998); Georgia v. Pennsylvania Ry. Co., 324 <br>U.S. 439 (1945), are almost hopelessly inconclusive, but no such <br>exception for plaintiff-competitors has ever been explicitly <br>adopted by that court. <br>  This is a more doubtful case than most for developing a <br>new "competitor" exception to the filed rate doctrine.  Although <br>Norwood may be in limited competition with New England Power <br>affiliates, it is primarily a consumer challenging a filed rate <br>that it does not want to pay (the contract termination charge), <br>and--as we will see--its position as a "competitor" is qualified.  <br>Although one case to which Norwood points has adopted a competitor <br>exception where the plaintiff was both a competitor and a consumer, <br>City of Groton, 662 F.2d at 927-29; cf. City of Kirkwood, 671 F.2d <br>at 1179, it appears to have been a standard price squeeze case <br>where one of the relevant prices was not reviewable by the federal <br>agency.  City of Groton, 662 F.2d at 927. <br>  Finally, Norwood contends that a savings provision added <br>by the Energy Policy Act of 1992, 16 U.S.C.  824k(e)(2), somehow <br>overrides the filed rate doctrine.  The provision provides that <br>"[s]ections 824i, 824j, 824l, 824m of this title, and this section, <br>shall not be construed to modify, impair, or supersede the <br>antitrust laws."  Id.  But by its terms this provision only refers <br>to limited sections of the Federal Power Act, notably not including <br>those that establish the rate filing requirements, 16 U.S.C.  <br>824d, and to which the filed rate doctrine relates. <br>  As already noted, the law on the filed rate doctrine is <br>extremely creaky.  Our own principal price squeeze decision, Town <br>of Concord v. Boston Edison Co., 915 F.2d 17 (1st Cir. 1990), cert. <br>denied, 499 U.S. 931 (1991), threw out the claim on the merits, <br>expressing great skepticism about such claims as to regulated rates <br>but never mentioning the filed rate doctrine.  Id. at 25-29.  Yet <br>this case is not a good vehicle for considering any cutting back on <br>the doctrine, to whatever extent Square D permits adjustment, <br>partly because the Sherman Act claims pressed by Norwood are <br>themselves so doubtful. <br>  There are at least two grounds for extreme skepticism.  <br>The usual section 2 claim requires monopoly or near monopoly power <br>in some market, and a wrongful exclusionary act designed to enhance <br>such power in that market or to achieve an improper advantage in <br>another market.  E.g., Otter Tail Power Co. v. United States, 410 <br>U.S. 366, 377 (1973); United States v. Grinnell Corp., 384 U.S. <br>563, 570-71 (1966).  It is not clear just what monopoly power <br>Norwood attributes to New England Power, which has now sold its <br>main generating assets and, so far as it may retain a dominant <br>position in transmission, is constrained to wheel power for others <br>under Order No. 888.  See New England Power Co., 82 F.E.R.C.  <br>61,179, at 61,662 (1998). <br>  Further, it is hard to see just what wrongful act is <br>involved.  Although sustained by FERC's regulatory policies, the <br>termination charge is largely a surrogate for recovery of net <br>proceeds from a prior contract renounced by Norwood; and the <br>refusal to give Norwood the benefit of the wholesale standard offer <br>rates appears to reflect the fact that as a municipality Norwood is <br>not required to provide competitors access to its customers or <br>afford them retail standard offer rates.  Mass. Gen. Laws ch. 164, <br> 47A.  These are very far from the usual kinds of wrongdoing that <br>support a section 2 claim. <br>  It is also very far from clear that Norwood is seriously <br>threatened as a competitor.  Apparently most of its customers are <br>captive, see Mass. Gen. Laws ch. 164,  47A, and Norwood has no <br>obligation to give them access to other suppliers, id.  Some fringe <br>competition may exist for new customers who can choose where to <br>locate, or old ones inclined to relocate--e.g., customers choosing <br>between Norwood and adjoining communities serviced by Mass <br>Electric.  But the extent that such choices may be affected by the <br>standard offer rates is unclear.  The rates are not automatically <br>available to benefit either new customers or those who move, Mass. <br>Regs. Code tit. 220,  11.04(9)(b)(2)(c); and the advantage they <br>provide will disappear fairly soon because the rates quickly <br>escalate. <br>  Of course, doubts about market power cannot be resolved <br>on a motion to dismiss; and the "wrongful act" issue, although <br>technically legal, has not been briefed and might depend in some <br>measure on contextual facts at which we can only guess.  But these <br>doubts do reinforce a sense that this is not a case that calls out <br>for revisiting the filed rate doctrine or for strenuous efforts to <br>carve out exceptions that test the limits of the Supreme Court's <br>reaffirmation of the doctrine in Square D. <br>  Norwood also makes a section 1 claim that the standard <br>offer rates New England Power promised to other retailers as part <br>of the settlement somehow constitute horizontal price fixing.  But <br>offer of those rates to customers is an ordinary vertical <br>transaction, and the settlement did not set rates for other <br>wholesale suppliers; USGenNE's later assumption of the obligation <br>is simply the transfer of the seller's existing obligation incident <br>to a sale of assets.   <br>  4.  This brings us to Norwood's other antitrust claim <br>worth discussing, namely, that New England Power's sale of its <br>fossil and hydroelectric generating assets violates section 7 of <br>the Clayton Act.  The main charge here is that the sale will <br>enhance market power in the wholesale electricity market in New <br>England and tend to exert upward pressure on wholesale prices to <br>the detriment of purchasers in that market, including Norwood.  <br>This claim is very doubtful, but it is not clear how it can be <br>resolved on this appeal solely upon a motion to dismiss. <br>  Ordinarily, the transfer of generating assets to a new <br>entrant could hardly reduce competition:  it lessens the market <br>power of the seller and adds a new competitor.  But USGenNE's <br>parent already owns some nearby generating assets (apparently in <br>New York); and depending on their size and the definition of <br>markets, in theory USGenNE and its New York affiliate could end up <br>together with more market power than previously possessed by New <br>England Power itself.  True, market power in transmission and <br>distribution may be vitiated by the open access requirements <br>imposed by FERC's Order No. 888 (discussed further in our <br>companion opinion); but greater concentration of generating assets <br>in a few hands--the hands of USGenNE and its associated companies-- <br>could still be a problem, depending upon how feasible long distance <br>transmission may be (and Norwood's complaint vaguely alleges some <br>limitations). <br>  On this claim, the filed rate doctrine is of no use to <br>the defendants.  For reasons that reflect more history than logic, <br>the limitations on antitrust litigation derived from federal <br>administrative regulation reflect a schizophrenic split.  Direct <br>antitrust attacks on federally regulated rates have (with some <br>exceptions discussed above) been limited by the filed rate <br>doctrine.  E.g., Square D Co., 476 U.S. 409.  So have attacks on <br>other regulated matters underlying rates (like power allocation <br>among electricity customers).  See Mississippi Power & Light Co. v. <br>Mississippi, 487 U.S. 354, 371 (1988); Nantahala Power & Light Co. <br>v. Thornburg, 476 U.S. 953, 966-67 (1986).  But the Supreme Court <br>says there is otherwise no across-the-board antitrust immunity for <br>agency-approved transactions.  See California v. Federal Power <br>Comm'n, 369 U.S. 482 (1962). <br>  Although it is not clear in all cases where the boundary <br>lies between the filed rate doctrine and the default rule retaining <br>antitrust liability, mergers or sales of assets by federally <br>regulated utilities have been left open to antitrust challenge even <br>though the resulting rates were subject to federal regulation and <br>even though the merger or sale had been explicitly approved by the <br>regulator.  See Northeast Utils. Serv. Co. v. FERC, 993 F.2d 937, <br>947 (1st Cir. 1993).  See generally California, 369 U.S. 482.  <br>Sometimes federal agencies do have explicit power to immunize <br>approved mergers, see Denver & Rio Grande Western Ry. Co. v. United <br>States, 387 U.S. 485, 496-97 (1967), but FERC does not.  Cf. South <br>Austin Coalition Community Council v. SBC Communications Inc., 191 <br>F.3d 842, 844 (7th Cir. 1999). <br>  This discrepancy in case-law treatment is debatable <br>policy, see generally IA Areeda & Hovenkamp, supra,  243 <br>(criticizing California v. Federal Power Commission), and there may <br>well be sound arguments for revisiting the issue in light of recent <br>improvements in FERC's analysis of mergers and asset transfers, see <br>generally Pierce, The Antitrust Implications of Energy <br>Restructuring, 12 Nat. Resources & Env't 269 (1998).  But the <br>distinction has been adopted by the Supreme Court and never <br>abandoned, compare Otter Tail Power Co., 410 U.S. at 373, with <br>Square D Co., 476 U.S. 409, and the defendants have not even <br>attempted to defend the use of the filed rate doctrine to protect <br>the sale. <br>  Instead, New England Power argues that Norwood lacks <br>standing to make a section 7 claim because the sale is not causally <br>linked to Norwood's primary concern, the contract termination <br>charge.  But at least as a matter of pleading, Norwood is still <br>entitled to make a section 7 claim as a consumer of wholesale power <br>on the premise that the sale will increase concentration in the <br>wholesale market and ultimately increase prices to it.  PG&E says <br>that Norwood is protected by its long-term contract with Northeast <br>Utilities, but long-term is not forever and what Norwood purports <br>to worry about is a long-term upward pressure on wholesale prices. <br>  Alternatively, PG&E complains that Norwood's complaint <br>has never identified the alleged pre- and post-divestiture market <br>shares attributed to PG&E affiliates.  Just how much detail is <br>required in notice-pleading complaints does not have a formulaic <br>answer; we have been willing to sustain dismissals where a <br>plaintiff's antitrust claim was expressed only in the bare words of <br>the statute, seemed highly improbable, and was not strengthened by <br>more specific detail offered in the face of a direct challenge on <br>motion to dismiss.  See, e.g., DM Research, Inc. v. College of Am. <br>Pathologists, 170 F.3d 53, 55-57 (1st Cir. 1999); see also II <br>Areeda & Turner, Antitrust Law  317a, at 72 (1978). <br>  But it is one thing to sustain a dismissal where the lack <br>of detail was an issue pressed in the district court and the <br>plaintiff, having had notice and incentive to respond, failed to do <br>so by bolstering its complaint, either by amendment or by providing <br>the requisite information in opposing dismissal.  Here, this "lack <br>of detail" claim was not clearly present in the district court and <br>is not even close to its ground of disposition; and the section 7 <br>claim, although doubtful on the facts, is not inherently <br>impossible.  Cf. Tri-State Rubbish, Inc. v. Waste Management, Inc., <br>998 F.2d 1073, 1080-81 (1st Cir. 1993).  We think that a deficiency <br>in detail is a matter to pursue on remand, although some form of <br>summary disposition on this ground may yet be available. <br>  A different reason for doubt as to the antitrust claim is <br>that FERC itself found, after a regulatory analysis, that the sale <br>would not enhance market power.  New England Power Co., 82 F.E.R.C. <br> 61,179, at 61,658-59 (1998), reh'g denied, New England Power Co., <br>83 F.E.R.C.  61,275 (1998).  So far as we can tell, this <br>determination rested in principal part on a judgment that power <br>generated by USGenNE affiliates in New York was already committed <br>under long-term contracts and was not therefore a viable constraint <br>on prices in New England.  New England Power Co., 82 F.E.R.C.  <br>61,179, at 61,659.  This is akin to an approach taken by the <br>Supreme Court itself in discounting the committed coal production <br>of a merger partner.  See United States v. General Dynamics Corp., <br>415 U.S. 486, 501-11 (1974). <br>  Whatever its rationale, FERC's ultimate finding, if <br>right, probably dooms Norwood's Clayton Act claim.  There is no <br>indication that FERC's test of competition (applying the same <br>guidelines as the Department of Justice and Federal Trade <br>Commission, see New England Power Co., 82 F.E.R.C.  61,179, at <br>61,658 (1998)) is weaker or significantly different than that of <br>the Clayton Act.  See IV Areeda, Hovenkamp & Solow, Antitrust Law <br> 932d (1998) (discussing judicial approval of DOJ-FTC guidelines).  <br>Norwood was a party in the regulatory proceeding that led to the <br>finding and actively contested the issue. <br>  One might expect that FERC's finding in the regulatory <br>proceeding would be binding on Norwood under the doctrine of issue <br>preclusion.  But the question turns out to be complicated:  even <br>where the parties are the same, issue preclusion based on an <br>administrative determination is sometimes allowed and sometimes <br>not, depending on the nature of the proceeding, the nature of the <br>issue, the procedural rights afforded, and other considerations.  <br>See Restatement (Second), Judgments  83 (1982); II Davis & Pierce, <br>Administrative Law Treatise  13.3-13.5 (3d ed. 1994).  The <br>preclusion issue has not been briefed by the parties in this court <br>and, if it is to be pursued, this is best done on remand. <br>  A final problem for Norwood relates to relief.  Even on <br>the doubtful assumption that the sale has created a threat of <br>increased market power sufficient for a Clayton Act violation, it <br>may be not easy for Norwood to show monetary damages now.  And <br>while divestiture is technically a remedy permitted to private <br>parties in section 7 suits, the Supreme Court has suggested that it <br>may not always be proper at the behest of private parties even <br>where the government could have secured it.  California v. American <br>Stores Co., 495 U.S. 271, 295-96 (1990). <br>  The parties may wish to consider on remand whether these <br>loose ends justify further litigation.  There may be an equitable <br>case for some further accommodation of Norwood, at least as to the <br>amount of any termination charge, especially if the settling <br>parties have gotten better terms.  Cf. New England Power Co., 83 <br>F.E.R.C.  61,174, at 61,723 n.13 (1998).  Given the possibilities <br>of further expensive litigation (on certiorari, in the district <br>court, and at FERC), it may be worth the parties' time to consider <br>a settlement before pressing further. <br>  The district court's judgment dismissing the complaint on <br>the merits is affirmed as to all claims other than that under <br>section 7 of the Clayton Act; and the section 7 claim is remanded <br>to the district court for further proceedings consistent with this <br>decision. <br>  It is so ordered.</pre>

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