Securities & Exchange Commission v. New England Electric System
Opinion of the Court
delivered the opinion of the Court.
Respondent New England Electric System (NEES), a holding company registered under § 5 of the Public Utility Holding Company Act of 1935,
In reaching its conclusion the Commission construed the statutory phrase “loss of substantial economies” in Clause A of § 11 (b)(1) to require a showing that the “additional system cannot be operated under separate ownership without the loss of economies so important as to cause a serious impairment of that system.” In its first review of the Commission’s order, the Court of Appeals for the First Circuit held that the Commission had erroneously construed the statute; in the court’s view, “loss of substantial economies” merely “called for a business judgment of what would be a significant loss . . . .” The court therefore set aside the Commission’s order and remanded for reconsideration in light of that test. 346 F. 2d 399, 406. We reversed, approving the Commission’s construction, and remanded to the Court of Appeals for review of the challenged order in light of the proper meaning of the statutory term. SEC v. New England Electric System, 384 U. S. 176 (NEES I). On remand, the Court of Appeals again set aside the Commission’s order. 376 F. 2d 107.
The question for our decision is whether the Court of Appeals properly held that, on the record, the Commission erred in finding that NEES failed to prove a case for retention of the integrated gas utility system. We address that question against the background of a congressional objective to protect consumer interests through the “elimination of 'restraint of free and independent competition.’ . . . One of the evils that had resulted from control of utilities by holding companies was the retention in one system of both gas and electric properties and the favoring of one of these competing forms of energy over the other.” NEES I, 384 U. S., at 183.
Congress committed to the Commission the task of determining whether a holding company has met the burden of showing that its situation falls within the narrow exception under § 11 (b)(1). The Clause A determination whether separation entails a loss of economies likely to cause a serious impairment of the system involves an element of prediction which necessarily calls for difficult and expert judgment. That judgment requires the assessment of many subtle and often intangible factors not easily expressed in precise or quantifiable terms. This is the very nature of economic forecasting. The task calls for expertise and is not simply “an exercise in counting commonplaces.” United States v. Drum, 368 U. S. 370, 384; see NEES I, 384 U. S., at 184 — 185. Judicial review of that expert judgment is necessarily a limited one. See Gray v. Powell, 314 U. S. 402, 412-413; NLRB v. Hearst Publications, 322 U. S. 111, 131; Atlantic Ref. Co. v. FTC, 381 U. S. 357, 367-368; United States v. Drum, supra, at 375-376. Congress expressly provided that “[t]he findings of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” 15 U. S. C. § 79x (a); see Universal Camera Corp. v. NLRB, 340 U. S. 474; cf. NLRB v. Erie Resistor Corp., 373 U. S. 221, 236. In our view, the Court of Appeals in this case indulged in an unwarranted incursion into the administrative domain.
The Commission had before it a “severance study,” a cost analysis and projection prepared for NEES by a professional public utilities management consulting firm, Ebasco Services, Inc. This study projected a loss of economies of approximately $1,100,000 annually for the gas system as the result of its separation from NEES. The Commission dealt with this study in alternative ways. It analyzed the study and concluded that “[t]he Ebasco estimate is inadequately supported in a number of important aspects and leaves considerable doubts
The Commission’s ultimate finding that the projected $1,100,000 loss of economies annually did not constitute a loss of “substantial” economies within Clause A of § 11 (b)(1) was reached primarily upon the basis of its subsidiary findings upon three matters: (1) That NEES’ estimated losses were not significantly out of line with those found insubstantial in previous cases; (2) that other nonaffiliated Massachusetts gas companies,
I.
The Commission, consistent with its practice in prior cases,
It is significant, however, that the Court of Appeals’ criticism of the Commission’s use of ratios relied heavily on the court’s reading of the statistical data in evidence as showing that the projected loss of economies “would decrease [NEES’] rate of return from 6.4 per cent in 1959 to 4.1 per cent on the projected basis,” or some 30% below, “an average rate of 5.9 per cent for the non-
In any event, we may agree that the ratios of losses of revenues, expenses, and income are necessarily affected
Indeed, NEES apparently recognized that its burden to establish that its situation comes within Clause A included the burden of showing that the projected loss of economies would be more serious for its separated system than the comparable level of losses in the other cases already decided by the Commission. Respondent attempted to prove that the gas system’s distance from sources of supply gives it only a very narrow competitive advantage over oil as a fuel, and, further, that the system’s growth potential is more limited by a lack of new housing expansion in the area serviced by the gas companies. As we shall see below, the Commission found that NEES had not made a case in either respect insofar as those matters bore on whether the projected loss of economies threatened serious impairment of the separated system.
II.
The Commission’s resort to data concerning the operations of the nonaffiliated Massachusetts gas companies was a response to NEES’ argument, supported by the
The Court of Appeals rejected the comparison of these operating ratios, again on the ground that such ratios fail to take account of special characteristics of individual companies. The court observed that since all New England gas companies operated on a “small cushion . . .
III.
The Commission conceived that the projected loss of economies would in some measure be offset by advantages realized by the separated system under the direction of “a management solely interested in and devoted to the gas operations . . . .” 41 S. E. C., at 901. NEES, again supported by the Massachusetts Department of Public Utilities, took the position that its operation of the companies had already achieved all possible benefits of interservice competition. The Commission found the argument unpersuasive, relying again on a comparison with the nonaffiliated Massachusetts gas companies. This was a comparison of the sales performance of the gas companies under NEES management with the sales performances of the independents. All seven of the comparable independents showed substantially higher gas sales and revenues per customer and lower costs to customers.
The Court of Appeals held that the test of “serious impairment” under Clause A already took account of offsetting benefits to be realized from separation and therefore “that done, the general judgment has no independent significance in an individual case.” 376 F. 2d, at 115-116. Whatever the merit of the general premise, see NEES I, 384 U. S., at 184-185, we understand the Commission’s finding to have been simply that the projected $1,100,000 loss of economies did not in fact take into account any offsetting benefits on the assumption that joint operation had already achieved the advantages of independence. See 41 S. E. C., at 900-901. The Commission’s conclusion that NEES’ assumption was not proved has support in the record and the Court of Appeals was not justified in rejecting it.
The judgment of the Court of Appeals is reversed and the case is remanded to that court with direction to enter a judgment affirming the Commission’s order.
It is so ordered.
49 Stat. 812, 15 U. S. C. § 79e.
At the time of this proceeding, the integrated electric utility system consisted of seven electric utility companies serving parts of New Hampshire, Massachusetts, Rhode Island, and Connecticut. The integrated gas utility system consisted of eight Massachusetts gas companies. NEES also controlled a service company which provided services for the whole NEES operation.
Section 11 (b) of the Public Utility Holding Company Act of 1935, 49 Stat. 820, 15 U. S. C. § 79k (b), provides in pertinent part: “It shall be the duty of the Commission, as soon as practicable after January 1, 1938:
“(1) To require by order, after notice and opportunity for hearing, that each registered holding company, and each subsidiary company thereof, shall take such action as the Commission shall find necessary to limit the operations of the holding-company system of which such company is a part to a single integrated public-utility system . . . : Provided, however, That the Commission shall permit a registered holding company to continue to control one or more additional integrated public-utility systems, if, after notice and opportunity for hearing, it finds that—
“(A) Each of such additional systems cannot be operated as an independent system without the loss of substantial economies which
On remand, the Court of Appeals interpreted the “serious impairment” standard as requiring proof only of “a condition allowing survival but not on a sound or 'healthful continuing’ basis,”
“By fostering competition between gas and electric utility companies, the Act promotes what has been described as ‘variegated competition.’” NEES I, 384 U. S., at 184, n. 15.
The following passage is from the court’s opinion on remand:
“Even without the burden of proving likely demise, [NEES’] burden is, as the Court said, to meet 'a much more stringent test’ than that of a probable significant loss. But, if the standard to be applied to [NEES] is stringent, so is the level of analysis and
This was the latest year for which audited financial statements were available at the time of the hearing before the Commission. 41 S. E. C., at 889, n. 3.
All but one of the eight companies are located within 48 miles of the division headquarters; one is 80 miles away.
“Nonaffiliated” or “independent” refers to gas companies not having any electric affiliations and gas companies not jointly operated with electric companies serving the same franchise area.
E. g., Philadelphia Co., 28 S. E. C. 35, 50-52 (1948); General Pub. Util. Corp., 32 S. E. C. 807, 837 (1951).
The losses would amount to: 4.8% of operating revenues; 6.0% of operating revenue deductions (excluding federal income taxes); 23.3% of gross income (before federal income taxes); 29.9% of net income (before taxes).
See Engineers Pub. Service Co., 12 S. E. C. 41, 55-61, 78-81 (1942); North Amer. Co., 18 S. E. C. 611 (1945); Philadelphia Co., 28 S. E. C. 35, 45-53 (1948); General Pub. Util. Corp., 32 S. E. C. 807, 814-815, 823-839 (1951); Middle So. Util., Inc., 35 S. E. C. 1 (1953), 36 S. E. C. 383 (1955). The relevant financial data for each case are summarized in an appendix to the Commission’s opinion. 41 S. E. C., at 905.
Rate of retum is the percentage of net operating income to the rate base, which is fixed by a formula tied generally to the value of capital assets. The source of the 4.1% figure appears to have been the Court of Appeals. The 4.1% was apparently derived as follows:
(a) $ 3,050,988 (1959 net oper. income after taxes) $47,723,162 (rate base) =6.4% rate of retum
(b) $ 3,050,988 1,098,600 (projected losses) $ 1,952,388 (est. net oper. income)
(c) $ 1,952,388 $47,723,162 =4-1% mte °f retum
However, the $1,100,000 projected loss would generate income tax deductions of roughly 50%, increasing the numerator of fraction (c) from $1,952,388 to $2,501,688, and the rate of retum to 5.2%. The NEES brief relies on the 4.1% figure, but NEES has not challenged the Commission’s recalculation.
The 1959 rates of retum for the comparable nonaffiliated Massachusetts companies were as follows:
Percent
Berkshire Gas . 5.2
Brockton-Taunton Gas . 6.1
Fall River Gas. 6.2
Haverhill Gas . 6.8
Lowell Gas . 7.9
Springfield Gas . 6.4
Worcester Gas . 4.5
(Resp. Ex. 117; R. 1436.)
Although the parties are in dispute as to the validity of some of the data drawn from the previous cases, we do not consider it necessary to become involved in that controversy. Suffice it to say that we do not think the Commission in looking to the data for guidance exceeded the bounds of reason or administrative discretion.
Gas to New England was piped all the way from Texas, whereas oil was shipped in by tanker. NEES estimated the average home heating cost to be $166 for gas, $173 for oil; and it was in residential space heating that NEES found its chief market.
NEES calculated the composite rate of return for its gas system at 6.6% for 1958 and 6.4% for 1959. (Resp. Ex. 114; R. 1431.) The average for seven comparable independents was 6.3% in 1958 and 5.9% in 1959. (Resp. Ex. 117; R. 1436.)
NEES cites as prime evidence in this regard the testimony of Robert Cahal, an Ebasco marketing consultant who had to some extent analyzed the marketing conditions NEES faced. The substance of his testimony was that (a) gas and oil are highly competitive in the State, with oil being well entrenched in many areas
The Commission noted, without comment, that the population increase in NEES’ franchise areas between 1950 and 1960 was only 11% as compared with 18% in the areas of seven independents. 41 S. E. C., at 899, n. 23.
The operating ratio is “the percentage of total operating revenue deductions (other than depreciation, amortization of conversion costs, and Federal income taxes) to total operating revenues.” 41 S. E. C., at 899, n. 25. The ratio “affords a measure for determining the efficiency with which the enterprise is conducted and while its value is greater in comparing the year to year trend it has a limited use in comparing very similar enterprises.” Moody’s Public Utility Manual ix (1967). NEES’ ratio was fixed at 76.41% and compared with the composite ratio of nine independents of 79.14%, as well as their median and mean ratios of 74.87% and 76.35% respectively. Individual ratios are cited at 41 S. E. C., at 899, n. 26.
The Commission may properly regard size of operation to be a relevant factor. One of Congress’ concerns in providing the exception involved here was to protect small companies likely to fail if separated from the parent holding company. Cf. NEES I, 384 U. S., at 181; North Amer. Co. v. SEC, 327 U. S. 686, 697. See also H. R. Rep. No. 1903, 74th Cong., 1st Sess., 68-71; S. Doc.
See n. 18, supra, and accompanying text.
The breakdown was as follows:
1958— NEES Indep.
Sales, mcf/cust. 44.2 78.8
Revenues, cust. $95.44 $135.19
Cost to customers, mcf. $2.16 $1.72
1959-
Sales, mcf/cust. 51.5 83.7
Revenues, cust. $104.49 $142.10
Cost to customers, mcf. $2.03 $1.70
Equivalent data for the Norwood Gas Company, the NEES subsidiary asserted to have growth potential comparable to the independents, see n. 17, supra, were as follows (1958 and 1959 figures): Sales — 51.8 and 60.4 mcf/customer; Revenues — $112.59 and $125.66/customer; Cost to customers — $2.17 and $2.08/mcf. 41 S. E. C., at 901, nn. 29-30. See R. 1446-1447, 1449-1450.
“[N]o specific demonstration of the existence or extent of such a causal relation was presented.” 41 S. E. C., at 901. See also n. 21, supra.
Concurring Opinion
concurring.
Given the earlier decision of the Court in this case, SEC v. New England Electric System, 384 U. S. 176, which I continue to believe wrongly construed the statute but by which I consider myself bound, I join today’s opinion of the Court.
Reference
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