# Consol. Gas Co. of Fla. v. City Gas Co. of Fla.

> District Court, S.D. Florida · July 24, 1987 · 665 F. Supp. 1493

URL: https://www.frixlaw.com/law-library/cases/1668318

## Case

- **Full name:** CONSOLIDATED GAS COMPANY OF FLORIDA, INC., Plaintiff, v. CITY GAS COMPANY OF FLORIDA, INC., Defendant
- **Court:** District Court, S.D. Florida
- **Decided:** July 24, 1987
- **Citations:** 665 F. Supp. 1493; 1987 U.S. Dist. LEXIS 6926
- **Precedential status:** Published
- **Opinion:** Opinion by Marcus
- **Judges:** Marcus
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1668318

## Opinion text

TABLE OF CONTENTS
I. THE CLAIMS 1501
II. FINDINGS OF FACT 1502
A. The Parties 1502
B. Regulation of LP and Natural Gas in Florida 1503
C. Gas Availability and Price Structure 1503
D. City Gas’ Market Power 1504
E. City Gas’ Efforts to Acquire Consolidated 1507
F. Consolidated’s Easement Agreements 1508
G. Consolidated’s FERC Application 1509
H. City Gas’ Proposed Terms for the Sale or Transportation of Natural Gas 1510
I. The Feasibility of City Gas’ Expansion to Serve Consolidated’s Customers ; 1513
*1501
J. The Stay of This Lawsuit 1514
K. Consolidated’s Damages 1514
in. CONCLUSIONS OF LAW: CONSOLIDATED’S MONOPOLIZATION CLAIM 1515
A. The Relevant Product Market 1516
B. The Relevant Geographic Market 1518
C. Monopoly Power 1519
D. Intent to Monopolize 1521
E. The Willful Acquisition of Monopoly Power: The Territorial Agreement 1522
1. The First Prong: No Clearly Articulated State Policy 1526
2. The Second Prong: Absence of Active Supervision of Territorial Agreements 1531
F. The Willful Maintenance of Monopoly Power: Refusals to Deal; Other Predatory Acts 1532
1. The Essential Facilities Doctrine 1532
2. The Intent Test 1539
3. Other Predatory Acts 1540
G. Damages 1542
IV. CITY GAS’ COUNTERCLAIM: THE ILLEGAL TYING CLAIM 1545
MARCUS, District Judge.
The central issue presented by this case is whether a monopolist involved in the distribution and sale of natural gas, a business regulated by the Florida Public Service Commission, is completely immunized from the sweep of the federal antitrust laws. On the facts of this case, where we can find no clearly articulated state policy or codification conferring any such immunity, we hold that the conduct of Defendant City Gas of Florida, Inc. (“City Gas”), as to the creation of a territorial agreement not to compete in south Florida with its only real competitor in this state, violates the Sherman Act. We also hold that the Defendant’s refusal to deal with the Plaintiff, Consolidated Gas Company of Florida, Inc. (“Consolidated”), a tiny potential competitor in south Dade County, as to the transportation or sale of natural gas violates the Sherman Act,
inter alia,
under the essential facilities doctrine. The particular regulatory scheme adopted in Florida does not extend so far as to clothe with absolute immunity the Defendant’s demonstrably anticompetitive conduct.
For the reasons which we detail at great length below, it is hereby
ORDERED AND ADJUDGED as follows:
1. Defendant City Gas has violated § 2 of the Sherman Act, 15 U.S.C. § 2 .
2. Plaintiff Consolidated shall recover $1,587,065.15 from Defendant City Gas as compensatory damages, to be trebled pursuant to 15 U.S.C. § 15 , for a total recovery of $4,761,195.45 in antitrust damages from City Gas.
3. Consolidated’s request for injunctive relief, pursuant to 15 U.S.C. § 26 , is granted. City Gas shall sell or transport natural gas to Consolidated at a reasonable price to be determined, upon Consolidated’s request, by the Florida Public Service Commission.
4. Consolidated’s claims for costs and attorneys’ fees shall be determined upon subsequent motion.
5. Consolidated shall submit a proposed order of final judgment in this cause to this Court within ten (10) days of the date of this Order.
I. THE CLAIMS
Plaintiff has brought suit against Defendant alleging that Defendant violated
*1502
§ 2 of the Sherman Act by monopolizing and attempting to monopolize the natural gas market in south Florida. Plaintiff has sued under 15 U.S.C. §§ 2 , 15 and 26 (the Sherman Anti-Trust Act (§ 2) and the Clayton Anti-Trust Act (§§ 15, 26)), seeking injunctive relief, damages and treble damages, costs and attorneys’ fees.
Plaintiff has charged Defendant with possessing and illegally exercising monopoly power, and with having wrongfully deprived Plaintiff of access to natural gas while Defendant allegedly took away all of Plaintiff’s commercial customers and some of its residential customers, thereby destroying Plaintiff’s ability to compete. Plaintiff specifically alleges, among other things, that Defendant acquired and maintained monopoly power from an unlawful territorial agreement not to compete with Peoples Gas System, Inc. (“Peoples”), the only other major natural gas distributor in south Dade; from a grant to Defendant by the Federal Energy Regulatory Commission (“FERC”) of the right to purchase natural gas in sufficient bulk to serve many more customers than it serves; and from the fact that Defendant allegedly occupied a “bottleneck” position and was in exclusive possession of essential facilities regarding the transportation and sale of natural gas in portions of Dade County.
The Defendant has filed an Amended Counterclaim alleging in three counts that Plaintiff violated § 1 of the Sherman Act ( 15 U.S.C. § 1 ) by engaging in contracts, combinations and conspiracies having as their purpose and effect the restraint of trade with respect to the purchase and resale of gas products; that Plaintiff violated § 2 of the Sherman Act ( 15 U.S.C. § 2 ) in that it unlawfully possessed and exercised monopoly power in the Bel Air/Point Royale subdivision, thereby substantially prohibiting or foreclosing Defendant from selling its product therein; and finally that Plaintiff violated § 3 of the Clayton Act ( 15 U.S.C. § 14 ) by virtue of an illegal exclusivity agreement between Plaintiff and the subdivision developers and a restrictive covenant running with the land, providing that no liquified or natural gas would be sold within the subdivision unless sold and supplied by Plaintiff.
At the core of Defendant’s prayer for relief is the assertion that Plaintiff violated the antitrust laws by these arrangements, improperly binding subdivision customers to purchase gas to be used for power, heating or cooking exclusively from Plaintiff. Defendant contends that as a direct and proximate result of these arrangements, it has been “precluded,” “foreclosed,” or “delayed” from selling natural gas in the subdivision. Like Plaintiff, Defendant seeks declaratory and injunctive relief, damages and treble damages, costs and attorneys’ fees.
This protracted and complex cause came on for trial before the Court, and accordingly, we make the following Findings of Fact and Conclusions of Law.
II. FINDINGS OF FACT
A.
The Parties
Consolidated is a retail distributor of liquid petroleum gas (“LP gas”) to approximately 2,000 residential and 10 commercial consumers located in the south Dade County subdivision known as the Bel Air/Point Royale Subdivision. Consolidated’s gas is shipped by rail or truck to storage tanks owned by Consolidated, and then is transported from the storage tanks to the ultimate consumer by a series of underground pipes located in easements. Consolidated has been in the LP business since before its current President, Mr. Arnold Rosen, purchased the company in the early 1960’s.
Defendant City Gas began business in 1949 as an LP gas company. [Tr. 2-113]. It served district subdivisions throughout Florida and currently serves over 23 such communities. City Gas’ principal competitor has been Peoples, which also operated numerous LP gas subdivisions throughout Florida. In 1960, natural gas, which can only be transported by pipeline, became available for resale in southern Florida and both City Gas and Peoples applied for and received allocations to purchase and resell natural gas in Florida from the Federal Energy Regulatory Commission or its
*1503
predecessor agency. City Gas soon became a major distributor of natural gas in Florida. Currently it purchases natural gas from Florida Gas Transmission (“FGT”), the sole wholesale pipeline supplier of natural gas for resale in Florida. City Gas serves approximately 100,000 residential, commercial and industrial customers. City Gas’ pipes and area of service totally surround Consolidated’s system. Despite its dominance in the natural gas field, City Gas continued to operate LP subdivision systems until May 1984 through its wholly owned subsidiary, Dade Gas Co. [Tr. 3-104].
B.
Regulation ofLP and Natural Gas in Florida
The LP gas business is unregulated; no governmental franchise or approval is required to purchase and resell LP gas. Moreover, LP gas is not subject to- rate regulation by the Florida Public Service Commission (“FPSC”), although its resale rates were subject to a federal price ceiling from 1973 until 1981. [Exec. Order No. 12,287, 3 C.F.R. 124 (1982)]. In contrast, natural gas distributors are regulated public utilities. Each natural gas distributor must obtain an “allocation” from the FERC in order to purchase natural gas from a pipeline company such as FGT. [Tr. 4-8]. Additionally, the regulatory process controls the resale prices of natural gas in three ways. First, FERC regulates natural gas “wellhead” prices, which are the prices paid by pipeline companies such as FGT to natural gas producers. Second, FERC regulates FGT’s wholesale price of natural gas to natural gas distribution companies such as City Gas. Finally, the FPSC regulates', natural gas distribution companies’ retail rates to residential and commercial consumers.
The FPSG’s regulation of natural gas distributors, however, is not all-inclusive. For although rates are determined through a complex and heavily monitored process known as a “rate case,” other critical aspects of a natural gas distributor’s business conduct are addressed either on a hit-or-miss basis or are simply not regulated at all by the FPSC.
1
Particularly relevant to this case is the FPSC’s regulation of territorial agreements between natural gas distributors. These important agreements are not required to be approved by the FPSC; they are in fact only considered when a utility requests FPSC approval, and they are only subsequently reviewed if a complaint is filed with the FPSC.
C.
Gas Availability and Price Structure
During the 1960’s and up to the onset of the Arab Oil Embargo in 1973, the price of LP gas was slightly higher than the price of natural gas, but the prices of both were extremely low. Indeed, the two to three-cent-per-therm price differential that existed during this time period created little incentive for distribution companies or consumers to undertake the risk and expense of converting from LP gas to natural gas. [Tr. 6-54]. In 1973, however, the Arab Oil Embargo caused unprecedented increases in world oil prices. Despite some federal price controls, LP gas prices rose much more rapidly than natural gas prices which were subject to regulation at the wellhead, at wholesale, and at retail. The resulting price differential, which approached twenty cents per therm at the wholesale level, suddenly made conversion to natural gas much more economically desirable. However, during the remainder of the 1970’s until 1981, there was a national shortage of natural gas. As a result, the federal government established a rationing program which in turn curtailed pipeline' distribution. [Tr. 6-54-55]. During this era of unprecedented instability, natural gas
*1504
prices were kept artificially low by the three-tiered regulatory scheme. These low prices were such potent disincentives to production that they, in turn, were responsible for the natural gas “shortage” that contributed to the federal government’s conservation policy and rationing program.
In addition to the Arab Oil Embargo, in 1979 the supply of crude oil, from which LP gas is refined, was reduced because of the cessation of oil imports from Iran, and in January 1981, federal price controls were lifted to increase supply. Thus, in 1981 LP gas cost twice as much as natural gas. As a result, LP gas became the 1980’s dinosaur of retail fuel products. Like whale oil, it had become obsolete. It could no longer compete with natural gas.
It was not until the first quarter of 1981 that a small surplus of natural gas appeared. This surplus grew rapidly from approximately 3% to 4% in 1981, to 12.3% by the end of 1982. [Tr. 6-289]. By October of 1983, the surplus had reached 30.2%.
\Id.\
This surplus is expected to last beyond the year 2000.
As a result of the dramatic increase in the cost of LP gas, LP distributors began to consider the wisdom of converting their systems to natural gas. Whereas natural gas must be transported by pipeline, LP gas is transported in containers and is then distributed to consumers through an underground pipe system. [Tr. 6-52]. Because the same underground system used for LP gas distribution is suitable for natural gas distribution, an LP system located near a natural gas pipeline may be converted to natural gas on an economically feasible basis. Conversely, many LP systems are located at too great a distance from a natural gas pipeline to justify the capital expenditure necessary to extend a pipeline to a natural gas source. [Tr. 6-52].
Consolidated began its efforts to switch from LP gas to natural gas on March 9, 1982. On this date its controller, Richard Fleisher, wrote a letter to FGT requesting that FGT begin providing it with natural gas, and that FGT construct the necessary pipeline facilities. [Tr. 1-11; Plaintiff’s Ex. A-0004]. On April 2 1982, FGT responded that in order to buy gas from FGT, Consolidated first had to obtain a FERC natural gas allocation. [Tr. 4-12-13; 1-12]. Additionally, FGT advised Consolidated that it would be required to reimburse FGT for the cost of connecting Consolidated’s system to the FGT pipeline. This cost was then estimated to be approximately $250,000. [Tr. 4-13]. FGT suggested that, as a more economical alternative, Consolidated might arrange for a connection with City Gas’ system, which was located much closer to Consolidated’s system than the FGT pipeline. [Tr. 4-13]. In any event, for sound economic reasons Consolidated determined that it wanted to have a natural gas allocation and consequently applied for one from the FERC on May 21, 1982. Consolidated’s application was the first application of its type to the FERC for a new natural gas allocation in 12 years. [Tr. 6-287].
D.
City Gas’ Market Power
In order to determine City Gas’ market power, we must first define the relevant market. It is clear based on an analysis of functional interchangeability and cross-elasticity between natural gas and LP gas that the relevant product market in this case is composed solely of natural gas. For although natural gas and LP gas are functionally interchangeable as to use, there is no cross-elasticity between them. Where .natural gas is available, LP gas simply cannot compete because of its overwhelming price disadvantage. Like whale oil after the advent of kerosene, LP gas is obsolete in any geographic area where natural gas is available. However, even if the relevant product market consists of both natural gas and LP gas, as City Gas asserts — a proposition which we cannot accept, because of the enormous price differential between the two products and the lack of any evidence which suggests that this situation will change in the foreseeable future — we find that our result would remain unchanged. City Gas’ market share even in the combined natural gas/LP gas market is so great that it has market power even in this market.
*1505
We also find that the relevant geographic market in this case consists of City Gas’ territory, Consolidated’s service area, and the as yet unserved portions of southwest Dade County. The only alternative choice for a relevant geographic market, presented to us by Defendant, is that of Consolidated’s service area. In an economic sense, however, this geographic area is meaningless. Consolidated’s service area has nothing to do with either the area in which the sellers compete or the area in which prospective purchasers will turn for sellers. Eather, it is clear that City Gas serves customers well beyond Consolidated’s service area, which its pipes surround, and that Consolidated would like to compete beyond its service area as well. Additionally, it has been established that customers in Consolidated’s service area look beyond these boundaries for sellers of gas. Indeed, many of these customers have already done so by turning to City Gas for service. Thus, we reject City Gas’ theory of the relevant geographic market.
With the relevant market established, we now turn to the measurement of Defendant’s market power. First of all, we observe that City Gas’ market share is overwhelming. The market shares of natural gas companies in the relevant market in 1981 were as follows: City Gas sold 123,-734,000 therms of natural gas in 1981; Miller Gas sold 2,836,000 therms; Plaintiff did not sell any natural gas. This computes to a 97% market share for City Gas and a 2.4% share for Miller Gas. [Tr. 7-3]. Moreover, City Gas had 100% of the market for “hookups” of new natural gas customers during 1981. [Tr. 7-4]. In the second place, the record evidence has established that entry barriers in the natural gas business are high because the potential entrant must build or acquire a costly pipeline distribution network and a way to obtain natural gas, whether from the FEEC or another distributor. Indeed Consolidated experienced enormous difficulty in attempting to enter the market, even though it had already made a substantial distribution network. Third, we note that exit barriers in the industry are also high because a company withdrawing from the natural gas business could not easily withdraw its money from its pipelines by converting them to some other business line. [Tr. 7-6]. A fair review of the evidence adduced at trial therefore establishes Defendant’s overwhelming market share.
In deciding to convert from LP gas to natural gas in 1982, Consolidated suddenly found itself in potential competition with City Gas, which had grown to be a giant in the south Florida area. Because only three companies in Florida had natural gas allocations, and because natural gas became substantially less expensive than LP gas, City Gas had expanded quickly.
City Gas’ power was further strengthened by a territorial agreement which it entered into in September 1960 with its only major competitor, Peoples. [Plaintiff’s Ex. C-0018]. This agreement delineated separate natural gas service areas for each of the natural gas companies and eliminated any competition between them.
[Id,.].
Under the terms of the agreement, City Gas and Peoples essentially divided up south Florida into the areas Peoples would serve and the areas City Gas would serve; each promised not to compete in the other’s territory. City Gas and Peoples requested the Florida Public Utilities Commission (now the “FPSC”) to approve their territorial agreement, and it was subsequently approved by the Commission, which observed that such agreements were in the public interest and should be encouraged. The territorial agreement remains in effect, and City Gas and Peoples, the two largest natural gas companies in Florida, do not compete with each other. [Tr. 3-93]. While City Gas and Peoples do not compete with each other, they are not precluded from competing with other smaller natural gas companies within the service areas which each reserved to itself under their agreement., Consolidated’s small LP system is located deep within City Gas’ territory. Consequently, Consolidated was forced to compete with City Gas in order to retain its customers or else see them go to City Gas for more economical gas service.
The region of southwest Dade County in which Consolidated is located is projected
*1506
to be one of the fastest growing portions of Dade County through the year 2005. [Tr. 5-234-237], The areas adjacent to Consolidated’s system are expected to experience growth of approximately 144.3%, which amounts to some 88,185 people over the next twenty years. [Tr. 5-234-237]. This growth should take place in the areas to the west, north and south of Consolidated’s present area of service. [Tr. 5-237]. Between 1984 and 2005, this growth in population should generate a 130.1% increase in the number of housing units in these areas, which means that approximately 34,225 housing units will be constructed during these years. [Tr. 5-237-239]. Related commercial building is expected to increase along with the population. [Tr. 5-238]. New light commercial and service enterprises such as restaurants, stores, cleaners and other businesses likely to use gas can be expected to accompany the expansion.
[Id.].
Accordingly, Consolidated should be able to expand its system in response to this growth if it can procure a competitively priced source of natural gas.
Indeed, since 1982 a dozen new businesses have been constructed in Consolidated’s territory, but Consolidated has been unable to serve them because it does not have natural gas. [Tr. 1-25]. Moreover, during 1984, City Gas began providing service to seven commercial accounts in a shopping center adjacent to Consolidated’s service area. [Tr. 6-73]. Thus, it became crucial that Consolidated convert to natural gas for as low a cost as possible in order to be able to offer rates that were competitive with those City Gas could offer. In order to compete effectively, Consolidated believed it was imperative that FGT provide Consolidated with a first connection to the natural gas pipeline at FGT’s cost. The amortization of the estimated $250,000 capital cost of this lateral pipeline would have increased Consolidated’s cost of securing natural gas by approximately five cents per therm. [Tr. 6-91-92]. City Gas had already received approximately ten such connections with FGT at no cost and thus it did not have similar expenses driving up its natural gas rates. [Tr. 5-187-188].
Faced with these problems, Consolidated was left with three potential courses of action if it was going to remain in business: (1) obtain a FERC allocation and hope that it could convince FGT to pay for the lateral pipeline connection; (2) connect a pipeline to City Gas’ pipe and purchase gas directly from City Gas; or, finally (3) obtain a FERC allocation, connect a pipeline to City Gas’ pipe, and pay City Gas the cost of transporting gas through City Gas’ pipes. Two of these courses of action required Consolidated to deal directly with its future competitor, and the third alternative, as the facts reveal, involved unreasonable delays and uneconomically high expenses. In response to Consolidated’s dilemma, City Gas, the only natural gas distributor with pipelines near Consolidated’s service area, responded by attempting to eliminate its tiny competitor, as it had already succeeded in doing to two other small LP distributors, Nationwide Utilities (“Nationwide”) and Miramar Gas Company (“Miramar”).
The pattern established by City Gas' acquisition of Nationwide and Miramar is, we believe, particularly instructive in this case. At the time that it acquired Nationwide, in 1980, City Gas’ pipelines surrounded the area served by this small LP distributor, located in south Broward County. City Gas had the only supply of natural gas to offer for sale in the area and Nationwide did not have a natural gas supply of its own. Consequently City Gas installed a line and began to provide natural gas to a number of residential customers served by Nationwide. [Tr. 3-122], Nationwide could not compete with City Gas once it began soliciting and hooking up its customers, simply because LP gas could not compete with the price advantage of natural gas. [Tr. 3-123-124]. On July 31, 1980, City Gas bought Nationwide for $300 per active customer. [Plaintiff’s Ex. C-Ó047].
In early 1982, City Gas acquired Mira-mar, another small LP distributor in south Broward County. Here again, City Gas’ pipeline surrounded the area served by Miramar, and City Gas had the only supply of natural gas to offer for sale in the area. City Gas began converting some of Mira-mar’s customers to natural gas [Tr. 2-202-
*1507
203], and was then able to purchase Mira-mar for $385 per active customer. [Tr. 3-117-120].
When Nationwide and Miramar sold their businesses to City Gas, there was no other distributor from whom they could have purchased natural gas or to whom they could have sold their systems. [Tr. 3-124-125]. In view of City Gas’ FERC allocation, its market share in the geographic area and the absence of any other natural gas supply, Nationwide and Miramar had no other realistic choice but to sell to City Gas. In 1982 Consolidated faced a simlar dilemma. We think City Gas’ policy of acquiring tiny competitors was part of its underlying purpose to eliminate all competition within its region.
E.
City Gas’ Efforts to Acquire Consolidated
On February 22,1982, City Gas’ Board of Directors ratified and approved City Gas’ contract to purchase Miramar. At the same meeting the Chairman of the Board, Sid Langer, advised the Board that he had been “attempting to acquire the gas properties of Consolidated,” and the Board passed a resolution authorizing Mr. Langer and its other officers to “work out the acquisition of the assets of Consolidated Gas Company and take whatever steps with respect thereto, as they deem appropriate.” [Tr. 5-223; Plaintiff’s Ex. G-0089]. However, no one from City Gas had ever contacted anyone at Consolidated pri- or to February 22, 1982 about buying the company, and no contact of any kind was made with Consolidated until late March of 1982 when City Gas’ president, Jack Langer, telephoned Consolidated’s controller, Richard Fleisher, to advise him that City Gas had already begun to serve some of Consolidated’s customers and intended to serve others. Subsequently, in May of 1982, Sid Langer and Jack Langer of City Gas met with Arnold Rosen of Consolidated to discuss the idea that City Gas purchase Consolidated. [Tr. 2-171-172; 3-8]. At the meeting, Sid Langer offered to buy Consolidated for the same price per customer that City Gas had paid for Nationwide, which Mr. Rosen understood to be $300 per customer. [Tr. 3-9]. Mr. Rosen stated that he wanted $900 per account. [Tr. 2-173]. No agreement was reached and Mr. Rosen left. [Tr. 3-10],
On February .23, 1982, one day after the Board resolution authorized Sid Langer to attempt to acquire Consolidated and notably before City Gas had notified Consolidated of its interest in pursuing an acquisition, City Gas’ sales manager, Ken Kessler, sent his sales staff out to make door-to-door solicitations of Consolidated’s customers. Some of these customers had signed a 1981 petition which they sent to City Gas and which requested that natural gas service be offered to them, but most of them had not. At least 60 of Consolidated’s approximately 2,000 customers were solicited [Tr. 5-201], and nine signed up to receive natural gas from City Gas. City Gas then sent letters to residents offering City Gas’ natural gas service, and followed up with door-to-door solicitations. Furthermore, City Gas’ representatives left door knob hang-tag advertisements at the homes of Consolidated’s customers if no one was home. [Tr. 2-11-13]. City Gas also ran newspaper ads directed specifically to people living near the Point Royale Shopping Center (within Consolidated’s service area) who were receiving LP gas, inviting them to call for a free survey as to the feasibility of receiving natural gas. [Tr. 2-17]. It would be fair to characterize City Gas’ sales efforts in Consolidated’s service area as “full scale.” On April 5,1982, City Gas began extending its pipelines [Plaintiff’s Ex. E-0008] to serve eighteen of Consolidated’s residential customers which it had solicited in February.
City Gas’ solicitation behavior, after its Board decided to attempt to acquire Consolidated but before it notified Consolidated of its intentions, leads us to find that City Gas’ solicitations and pipeline extensions were not simply ordinary business expansions, but rather, were basic components of City Gas’ strategy to force Consolidated to sell out. This conclusion is further supported, we think, by the fact that City Gas had to duplicate a portion of Consolidated’s pipeline in order to serve the eighteen Con
*1508
solidated customers it had recently signed. Yet if City Gas had expected to reach a purchase agreement with Consolidated, it would have acquired Consolidated’s pipelines and would not have had to incur this expense. City Gas’ action of duplicating these pipelines before notifying Consolidated of its interest in acquiring the company seems to have been designed to force Consolidated to sell at a low price or face the resultant certainty of losing its customers and their value as quickly as City Gas could serve them.
F.
Consolidated’s Easement Agreements
In expanding its system into the territory that was supplied by Consolidated, City Gas placed its own gas mains and lines in utility easements which had been granted to Consolidated by a recorded “Easement Agreement” dated December 13,1963. As a public utility, under Florida law, City Gas possessed the power of eminent domain entitling it to condemn and to pay just compensation for any real or personal property rights necessary for its provision of natural gas service to any customer. City Gas did not consider selling natural gas to customers in Consolidated’s territory until 1982. Prior to June 1, 1982, when a state lawsuit was filed by Consolidated against City Gas and served upon City Gas thereafter, City Gas had no knowledge of this recorded “Easement Agreement” or any of its provisions. City Gas also had not researched the public records to determine whether Consolidated had rights under any recorded documents. City Gas had observed other gas companies supplying gas in the subdivision, and believed that it was free to provide gas service to any home or business located in the subdivision. On or about June 1, 1982, Consolidated filed suit in Dade County Circuit Court against City Gas, seeking to enjoin City Gas from infringing upon the easements which had been granted to Consolidated by this recorded Easement Agreement. On June 16, 1982, the Circuit Court issued its order Granting Preliminary Injunction, ordering City Gas to cease and desist from extending any additional gas lines into the subdivision until further order of the court and requiring Consolidated to post a $5,000 injunction bond. While the injunction was in effect, City Gas continued supplying natural gas to the former Consolidated customers which it had already hooked up to its system. The preliminary injunction was dissolved by the Circuit Court in its Final Judgment dated November 30, 1982. Immediately after the Circuit Court dissolved the preliminary injunction, City Gas again began extending its system to provide natural gas service to homes and businesses located within the subdivision.
On March 6, 1984, the Third District Court of Appeal affirmed the Circuit Court’s Final Judgment on the grounds that (1) the portion of the Easement Agreement which gave Consolidated “an exclusive franchise” did not create an exclusive property right enforceable by Consolidated against City Gas, and (2) that the Easement Agreement by its terms gave Consolidated a “perpetual right of way easement” but did not create an exclusive right of way easement. The Court held that City Gas, a public utility, was not precluded by the Easement Agreement from using the servient land in any manner not inconsistent with the limited non-exclusive rights vested in Consolidated as the easement owner.
City Gas asserted as an affirmative defense in the state court litigation that the recorded “Easement Agreement” was invalid as a restraint of trade, but at no time did City Gas file or attempt to file a counterclaim alleging the illegality, under the Florida Antitrust Act of 1980 or other provisions of state or federal law, of any exclusive rights claimed by Consolidated in the easements in the subdivision. On March 4, 1985, Consolidated and City Gas entered into a settlement in the form of a stipulation pursuant to which the state litigation was ended with a Stipulated Order Directing Disposition of Injunction Bond, which was entered in circuit court on March 6, 1985. The settlement stipulation, was signed by both Philip Schiff, the attorney for City Gas, and Sid Langer, President and Chairman of the Board of City Gas. It and the Stipulated Order were drafted by Phillip Schiff.
*1509
G.
Consolidated’s FERC Application
On May 21, 1982, Consolidated applied to the FERC for a natural gas allocation so that it could resell natural gas to its customers. [Tr. 1-13; Plaintiffs Ex. B-0011 (1 of 122) ]. Consolidated’s application was filed under Section 7(a) of the Natural Gas Act, which requires an applicant to demonstrate that it has the technical and financial ability to distribute gas to customers; that the pipeline from which it seeks service (in this case FGT) has an adequate supply of gas; and that the customers who would be provided with gas service would derive some benefit from it. [Tr. 4-9].
On June 21, 1982, City Gas filed a petition with the FERC requesting leave to intervene in Consolidated’s application to oppose its request for natural gas. [Tr. 1-14; Plaintiff’s Ex. B-0012, B-0011 (9 of 122) ]. City Gas’ Petition to Intervene asserted that City Gas had existing transmission and distribution lines extending through the heart of the proposed service territory, as well as around it, and that City Gas anticipated that it would soon convert a majority of Consolidated’s customers to natural gas. [Tr. 1-14-15; Plaintiff’s Ex. B-0011 (9 of 122)]. City Gas also raised questions about the capacity of Consolidated’s system to operate at the pressures necessary to deliver natural gas. City Gas further argued that Consolidated should have to pay the $250,000 cost of the FGT lateral connection. [Plaintiff’s Ex. A-0001 at 14]. Finally, City Gas challenged Consolidated’s application on the basis of the adequacy of the natural gas supply.
On November 21, 1983, the presiding administrative law judge (“AU”) granted Consolidated’s application and rejected City Gas’ arguments. [Plaintiff’s Ex. B-0011 (52 of 122)]. The FERC affirmed that decision on September 19,1984, but it ruled that Consolidated should pay the cost of connection with FGT’s pipeline. [Plaintiff’s Ex. B-0011. (115 of 122); Tr. 3-21]. The FERC opinion stated:
There is no doubt that Consolidated’s proposed project would be economically feasible, if City did not have its eye on capturing Consolidated’s propane gas customers____
We admit that it is difficult to predict whether Consolidated’s project will be a success. But we need not make a “conclusive, definitive, formal finding” of economic feasibility. It is enough that there is a possibility of economic success. We think there is enough of a reasonable likelihood that Consolidated will retain its present customers and, therefore, be successful as a natural gas distributor for us to grant its request. The fact that its market is threatened by competition from City does not lead us to deny that request, for we do not think it in the public interest to deny Consolidated the right to compete.
[Plaintiff’s Ex. B-0011 (115 of 122) at 3-4 (footnotes omitted)].
The FERC also observed:
And at bottom that is what we are concerned with — the public interest. If we deny Consolidated’s request, City will win the war by default.
[Id.
at n. 12].
The opinion further held:
The record shows that standing alone both Consolidated and City could successfully serve Consolidated’s customers. We do not believe it is appropriate for us to determine which is the rightful distributor. That should be done by Consolidated’s customers. We' should not deprive them of the right to choose between two competitors for their natural gas service. Accordingly, we grant Consolidated’s application as modified below.
[Id.
at-4-5 (footnote omitted)].
There is no doubt that City Gas’ intervention profoundly altered the course and nature of the FERC’s consideration of Consolidated’s application. If full litigation of factual disputes had not been necessary, it would have taken only six to nine months for the FERC to have reached a final decision. [Tr. 4-18]. City Gas’ intervention caused a delay in the proceeding of more than one year. [Tr. 4-78], Additionally, if City Gas had not intervened Consolidated could have received a temporary certificate
*1510
entitling it to obtain natural gas within 90 days of the filing of its application. [Tr. 4-20]. Because City Gas intervened, this option became unavailable.
It is also demonstrably clear that the delay in the FERC proceedings severely hurt Consolidated. During the course of the proceedings, City Gas began providing service to seven of Consolidated’s eight commercial customers and the bulk of its residential customers. [Tr. 5-131-133]. Since Consolidated could not purchase natural gas from FGT without final FERC approval, its first and third courses of action were effectively foreclosed. Consequently, Consolidated was left with only its second alternative if it was to remain in business: the purchase of natural gas directly from City Gas.
H.
City Gas’ Proposed Terms for the Sale or Transportation of Natural
Gas.
As we have observed already, Consolidated had to purchase natural gas from City Gas because the next nearest natural gas distributor, Miller Gas, a small company when compared to City Gas and Peoples, was located approximately fifteen miles away. The cost of connecting a lateral to Miller’s pipeline would have exceeded $5,000,000 [Tr. 3-19], more than the entire net worth of Consolidated. Thus, Consolidated had no alternative but to purchase gas from City Gas.
During the course of the FERC proceedings, City Gas was asked by FERC personnel if it would consider selling natural gas to Consolidated. City Gas indicated that it would sell natural gas to Consolidated at City Gas’ cost plus ten cents per therm, with Consolidated paying all costs of connection, metering and other costs. [Tr. 1-19-20; 3-13-14]. In making this offer, City Gas knew that the FPSC would not approve sales on these terms because the rate was too high. [Tr. 3-226-227]. Indeed, City Gas’ Vice President, Mr. Ball, testified that he made no attempt to ascertain a reasonable price for direct gas sales to Consolidated, and that he came up with the cost plus ten cents terms “out of the air.” [Tr. 3-284]. At the time that City Gas made this offer, it had a contract to sell natural gas to Florida Gas for cost plus one cent per therm and it was buying gas from Peoples for resale under their non-competition agreement for one development in Peoples’ territory at cost plus seven cents per therm. [Plaintiff’s Ex. C-0051; Tr. 3-141-144, 5-182, 2-140].
Consolidated also proposed that City Gas allow its system to be used to transport natural gas from FGT’s pipeline to Consolidated if Consolidated received its own FERC allocation. City Gas rejected this suggestion.
City Gas did not modify its purchase or resale offers in any way until March 25, 1983, when the FERC staff scheduled a conference in Washington. [Tr. 3-227-228; Plaintiff’s Ex. A-0076]. The FERC’s purpose in calling this conference was to identify “settlement postures” and it directed the parties to “send a representative authorized to enter into binding negotiations on that party’s behalf.” [Plaintiff’s Ex. A-0075]. At the March 23, 1983 FERC settlement conference, Consolidated proposed that City Gas transport natural gas to Consolidated at cost plus two and one-half cents per therm, but City Gas responded that this offer was “out of the question.” [Tr. 3-67; Plaintiff’s Ex. A-0076]. Later in the conference, City Gas for the first time lowered its resale offer from cost plus ten cents to cost plus seven cents per therm, with Consolidated paying all costs. [Tr. 3-16-17; 3-228]. Consolidated had received advice that City Gas’ seven-cents-per-therm offer was far beyond competitive levels and that a price between 3 mills and one cent per therm was a reasonable range. [Tr. 3-69]. However, because the FERC staff was pushing for a settlement and City Gas’ actions were threatening Consolidated’s existence, Consolidated proposed that City Gas sell or transport at cost plus two and one-half cents and, later, at cost plus five cents, even though Consolidated believed these prices to be unreasonable. [Tr. 3-69-70; Tr. 5-41-42],
At the close of the conference, City Gas handed Consolidated a written “Final Of
*1511
fer,” in which City Gas (1) reiterated its offer of $385 per active customer to purchase Consolidated’s system on terms of ten percent down and ten percent interest over a ten-year term; and (2) stated that it would sell or transport natural gas to Consolidated for resale at cost plus seven cents per therm, with Consolidated paying all costs of connections and metering equipment. [Plaintiff’s Ex. A-0041]. On June 23, 1983, City Gas wrote to Consolidated attaching a “Settlement Offer” dated June 7, 1983. [Plaintiff’s Ex. C-0060]. In that offer, City Gas restated its purchase offer of $385 per active customer, thereby excluding Consolidated’s former customers. The June 7th offer also retracted City Gas’ short-lived offer to transport gas from FGT to Consolidated for a seven-cent markup, referring only to the sale of natural gas to Consolidated at cost plus seven cents per therm. [7d], The accompanying letter stated that the June 7th offer would be withdrawn on June 27, 1983, unless either offer were accepted. [7d]. Following the June 27th expiration of the June 7th offer, City Gas made no offer of any kind to sell or transport natural gas to Consolidated. [Tr. 3-235].
The expert testimony presented at trial by Consolidated convincingly established that neither price term was a reasonable or competitive price. First, City Gas’ marginal cost in selling or transporting gas to Consolidated was at or near zero since, under both offers, Consolidated was to pay all costs of connection and metering. At most, City would incur the expense of opening and maintaining a new account on its books and reading the meter on a monthly basis. Second, City Gas had no opportunity costs, which are the costs of providing this service to Consolidated instead of some other customer. City Gas had and still possesses a vast, unused natural gas entitlement of approximately 27 million therms per year in excess of its needs [Tr. 5-166-167], and its sale or transportation of 600,000 therms or less of gas to Consolidated would cost City Gas no other sales. Third, the price City Gas demanded bears no reasonable relation to its costs of providing the service. FGT charges approximately thirty-two cents per therm which includes its cost of gas and the cost of transporting it from producing fields in Texas and Louisiana to south Florida. [Tr. 6-61], City Gas demanded between 25% and 33% of that just to transport gas a few thousand feet. [Tr. 6-61-63]. Thus, in selling or transporting gas on the terms it quoted, City Gas would be earning far more per therm than the three to four cents net profit it earns on an average for all the therms it sells to all other customers. [Tr. 6-60].
City Gas argued that the cost-plus-seven-cents offer was reasonable because that is what it paid Peoples under the Limited Waiver agreement to serve one community in Peoples’ territory. Notably, no witness even ventured any opinion that the ten-cent offer was reasonable. But even the seven-cent offer cannot be justified by the Peoples-City Gas non-competition agreement seven-cent rate because this agreement was not reached in a competitive setting. Under the agreement, Peoples and City Gas do not compete in the area being served. Consequently, City Gas has been able to pass the seven-cent price increase along to its customers without fear of losing them to Peoples. The situation facing Consolidated was entirely different. If it was required to pay seven cents more for gas than City Gas, it would obviously be at a severe price disadvantage in selling natural .gas in head-to-head competition with City Gas.
City Gas also argued that the seven-cent markup must be reasonable because the FPSC approved those terms for Peoples’ sales to City Gas. The evidence does not support that argument, because it was established that the FPSC does not pass on the reasonableness of the charge between two large industrial firms, such as City Gas. and Peoples, based upon the obviously sound assumption that they can take care of themselves in the marketplace. [Tr. 6-64].
The expert and lay testimony indicated that because the costs to City Gas of providing the service are effectively zero, a fair and reasonable price for City Gas’ sale
*1512
or transportation of natural gas to Consolidated would probably be in the area of one cent per therm over other costs. [Tr. 7-15]. This Court will not attempt, nor do we feel required to determine exactly what a fair price would be. The task is best left to regulatory agencies, such as the FPSC, which would regulate Consolidated if it still seeks to sell natural gas to consumers, or to the marketplace. The FPSC is designed to make such complex and specialized rate determinations and to monitor continuously the rates of natural gas companies. The federal courts, on the other hand, are not well equipped to set a “fair price,” or to monitor the changing circumstances which might merit a review of such a determination. . Accordingly, all that we find on this record, and we believe the facts as developed at trial compel this finding, is that the price terms for the sale or transportation of natural gas which City Gas proposed to Consolidated were wholly unreasonable. The terms bore no relationship whatsoever to any economic calculation which Defendant might have made. We believe, in short, that the price terms were the functional equivalent of a refusal to deal at all.
City Gas’ true objectives were further revealed by its demands for excessive sale or transport prices and its willingness to forego short-term profits on reasonably priced natural gas sales to Consolidated. Since prior to 1980, City Gas has had an allocation entitling it to purchase and sell much more natural gas each year than it is able to resell to its customers. In 1981, City Gas’’ largest industrial customer, Lonestar Florida, Inc., reduced its annual purchases of natural gas from City Gas. This left City Gas with an excess supply of approximately 27 million therms of natural gas annually, in addition to the surplus it already had. [Tr. 5-166]. Consolidated’s LP gas consumption equals approximately 491,000 therms of natural gas per year. [Tr. 5-167]. Had City Gas sold a portion of its excess gas to Consolidated when Consolidated was asking to buy the gas, it could have supplied all of Consolidated’s needs with only 1.8% of City Gas’ excess gas supply. [Jd.]. In fact,
transporting
gas for sale to Consolidated’s customers would have consumed none of City Gas’ allocation at all.
Additionally, there were no engineering or other impediments to City Gas’ selling or transporting gas to Consolidated. Consolidated’s pipe system is well suited for natural gas delivery and, in fact, is virtually identical to City Gas’ system. The cost of interconnecting the two systems would be approximately $21,752 and both systems would have functioned properly with such interconnection. [Tr. 2-309-310; Plaintiff’s Ex. A-0071].
We have concluded that City Gas’ offer was tantamount to a refusal to deal and we think City Gas’ purpose in making it was to destroy a potential competitor, no matter how small and inconsequential it may have been. This conclusion is amply supported by the record in this case. The purpose behind City Gas’ conduct was, we believe, candidly stated by its Chairman of the Board, Sid Langer. When Mr. Langer was asked whether the receipt by Consolidated of a natural gas allocation to serve its 2,000 customers would deplete the natural gas supply to the other natural gas distributors, his answer was surprisingly telling:
A. Of course;
plus, it would give every other propane dealer
...
a chance to request natural gas for their own development throughout the state or throughout the country. God only knows. ■ .
Q. What is wrong with LP companies getting natural gas?
A. Nothing wrong with it.
Q. You said—
A. Except
you try to protect your own domain,
and there is nothing wrong with that either.
Q. Okay. Does it make any sense to argue that if Consolidated Gas received an allocation to serve those 2,000 customers, that it would reduce the supply of gas available?
A. Maybe yes, maybe no____
[Tr. 3-161-162] (emphasis added).
Mr. Langer’s testimony was echoed by City Gas’ Vice-President, Ivan Ball, who indicated that City Gas’ intervention in the
*1513
FERC proceeding was “almost automatic” as it was Defendant’s policy to oppose the allocation of natural gas to any other company in what it believed to be its “natural gas territory.” [Tr. 3-174]. Ball also testified that if Plaintiff’s FERC application were granted “it [would mean] that any propane company up and down the State could get an allocation.” [Tr. 3-264;
see also,
testimony of Jack Langer, Tr. 8-64]. The Defendant City Gas quite apparently believed that because it was involved in a regulated industry, it had untrammeled authority to eliminate any potential competitor within its area of operation.
I.
The Feasibility of City Gas’ Expansion to Serve Consolidated’s Customers
Still further indication of City Gas’ underlying purpose may be gleaned from its uneconomical expansion into Consolidated’s service area without requiring its new customers to pay “contributions in aid of construction” which City Gas normally charges in such circumstances. The FPSC requires all public utilities to observe regulations pertaining to the allocation of costs of extension of utility facilities to serve new customers. The purpose of these regulations, commonly referred to as “feasibility rules,” is to protect present customers of the utility from having to subsidize the utility’s speculative expansion into areas that are not economically and financially feasible. [Tr. 5-115]. Prior to April 29, 1983, the feasibility of City Gas’ extension of its service to a new customer or group of customers was to be determined by a formula comparing the costs of the extension to twice the gross annual revenues earned from the customer. If the cost of the extension exceeded two times annual gross revenues, then a contribution in aid of construction was to be charged to the utility customer, alleviating the cost burden to the utility and also protecting the other customers from the costs of subsidizing that extension. [Tr. 5-116; Plaintiff’s Ex. D-0001; Plaintiff’s Ex. J-0004].
In applying the feasibility rule, the proper method for determining the estimated annual revenue from a new customer who has been receiving gas service from another company is to estimate consumption based on past consumption as reflected in prior bills. If the new customer has no history of gas consumption, then alternative estimates may be employed, such , as tables that indicate consumption levels for various appliances. But the latter method may not be properly employed where the customer has a history of gas consumption. [Tr. 5-116,147]. The cost of a given extension of facilities may be determined through estimates of the costs of constructing the facilities by the contractor or by the engineering department of a utility company. [Tr. 5-116-117].
City Gas performed no true feasibility study of any kind prior to the expansion of its system to the bulk of Consolidated’s customers. City Gas’ estimates of annual revenues from those customers were exaggerated and any feasibility study based on those estimates would have provided a distorted view of the feasibility of the expansion. Although all of Consolidated’s former customers had gas appliances and a history of gas consumption, City Gas’ salesmen made no effort to determine past consumption levels. Instead, the salesmen used the appliances’ maximum gas consumption ratings from plates located on the appliances and then projected annual revenues by multiplying those revenues by City Gas’ prevailing rates. [Tr. 2-42; 2-85-87]. As a result, City Gas’ estimates of annual revenues were far in excess of its new customers’ historical and actual consumption. In fact, City Gas’ estimates of annual therms and revenues for new residential accounts taken from Consolidated were overstated by some 71.1%, and City Gas’ estimates of annual therms and revenues for its new commercial accounts were overstated by approximately 35.6%. [Tr. 5-117-120]. In view of the information available to City Gas, the variance between these estimates and reality appears to be more than a matter of negligence or accident.
A feasibility study based on the actual consumption levels of City Gas’ new customers both before and after they were
*1514
taken from Consolidated shows that City Gas’ extensions of its facilities to all but ten customers did not meet the company’s feasibility criteria. Although documentation indicates that City Gas contemplated charging a contribution in aid of construction, no such contributions were collected. [Tr. 5-122-126]. City Gas’ counsel agreed at trial that City Gas had waived some $19,000 in contributions that should have been collected from Consolidated’s customers under City Gas’ feasibility rule. [Tr. 8-16, 26]. City Gas obtained the funds to expand into Consolidated’s territory from the proceeds of its natural gas sales to other customers. [Tr. 3-208-209]. Thus, City Gas’ other customers paid the costs of City Gas’ expansion into Consolidated’s service area because City Gas waived the necessary contributions.
J.
The Stay of This Lawsuit
The present action was filed by Consolidated on April 22, 1983, seeking damages and an injunction to prohibit City Gas from engaging in any further efforts to block or delay Consolidated’s access to natural gas. City Gas responded to the Complaint on May 16, 1983, by moving the Court to stay this lawsuit. Consolidated amended its Complaint on May 23, 1983, alleging that City Gas’ motion to stay this suit was an additional act designed to delay Consolidated from obtaining judicial relief. On June 2, 1983, City Gas renewed its motion to stay in response to the Amended Complaint. This motion to stay remained pending and delayed the progress of this suit for almost one year, from May 16, 1983 until May 3, 1984, when United States District Judge Hastings, to whom this cause had been assigned originally, entered an order denying the motion.
K.
Consolidated’s Damages
The expert and lay testimony and documentary evidence presented at trial shows that City Gas’ actions diminished Consolidated’s value as a going concern by the amount of $1,503,975. [Tr. 6-67]. An industry and valuation expert, Mr. Ben Ball, whose testimony we have credited, derived this figure by determining Consolidated’s net present value as a natural gas company with a competitively priced source of natural gas selling natural gas at City Gas’ rates and possessing the same number of residential customers (1,995) and commercial customers (8) that it averaged during the years 1981 and 1982. According to Mr. Ball’s calculations, Consolidated’s net revenue above variable costs would have been $128 per residential customer per year and $2,182 per commercial customer per year. [Tr. ■ 6-69]. Using an interest rate of 10 percent and a term of 20 years, the net present value of the cash flow stream generated by each residential customer would have been $1,092; and the net present value of the cash flow stream generated by each commercial customer would have been $18,573. [Tr. 6-69]. These values per customer were then multiplied by the average number of customers in the 1981-1982 period. [Tr. 6-69]. ‘
From this total, Mr. Ball substracted approximately $100,000, representing the costs to Consolidated of the modifications necessary to its customers’ appliances to accept natural gas ($50 per customer). [Tr. 6-69]. Mr. Ball next subtracted the present value of Consolidated’s starting costs (approximately $500,000) and the cost of interconnecting the City Gas and Consolidated systems for resale or transportation of natural gas ($21,000). [Tr. 6-70.] On the basis of these calculations, Mr. Ball calculated that Consolidated’s value as a natural gas company selling natural gas at City Gas’ rates to the 1,995 residential and 8 commercial customers it had on an average during 1981 and 1982 would be approximately $1,705,000. [Tr. 6-71].
To this amount, Mr. Ball added $130,011, which represents the present value of seven commercial customers ($18,573 per customer) attached by City Gas during 1984 in the South Dade Shopping Center. [Tr. 6-73]. This shopping center is contiguous to the Consolidated system and consists of customers for which Consolidated did not have an opportunity to compete because it lacked a competitively priced supply of natural gas. Mr. Ball also added the present value of one new residential account
*1515
($1,092) that City Gas added to its system in September of 1985. [Tr. 6-73]. Accordingly, Consolidated’s value including those seven commercial customers and one residential customer to which City Gas is providing service in its area and for which Consolidated could not compete is approximately $1,836,000. [Tr. 6-73].
Next Mr. Ball calculated the additional value Consolidated would have because of its potential to grow at the rate of 6 percent per year. [Tr. 5-238-239]. Ball did not assume that Consolidated would obtain all of the 6 percent annual growth projected by Mr. David Starke, Plaintiff’s popula-. tion growth trend expert, for the areas adjacent to its system in the next 20 years. Instead, in calculating the value of Consolidated’s growth potential, Ball assumed only that Consolidated itself would expand its existing system at the rate of 6 percent per year. [Tr. 6-75]. Taking into account the additional costs of expanding its system to new customers, Mr. Ball calculated the total added present value of Consolidated’s growth potential to be approximately $438,000. [Tr. 6-75-77]. Based on these calculations, Mr. Ball concluded that Consolidated’s value today as a natural gas firm, including the seven commercial accounts in the South Dade Shopping Center and the one residential account for which Consolidated never had the opportunity to compete, plus the present value of a 6 percent projected growth over 20 years, would be approximately $2,275,000. [Tr. 6-77].
Mr. Ball then proceeded to determine Consolidated’s actual value today. Applying the market approach, he determined Consolidated’s maximum value today to be $771,155. This value is the amount of the offer made by City Gas to Consolidated ($385 per existing customer). Mr. Ball considered this to be Consolidated’s maximum value today. [Tr. 6-73-74]. He applied the market approach because City Gas’ capacity to use its strategic location and resources to deny Consolidated natural gas and to take its customers had severely threatened Consolidated’s continued existence, and would continue to do so. Accordingly, application of the income approach that Mr. Ball used to calculate Consolidated’s value in the absence of City Gas’ actions would not provide a meaningful or accurate measure of Consolidated’s present going concern value, as that approach assumes a reasonable likelihood of continued cash income. Furthermore, in view of these same circumstances, City Gas was the only potential buyer and could dictate its own price. Accordingly, someone purchasing Consolidated would succeed to Consolidated’s present predicament and would ultimately be forced to sell to City Gas at a distress price. Thus, we agree that City Gas’ $771,155 offer represents Consolidated’s maximum value today. [/<£].
The diminution in Consolidated’s value as a natural gas company as a result of City Gas’ actions is the difference between what its value would have been in the absence of City Gas’ actions ($2,275,130) and its value on the market today ($771,155). That difference is $1,503,975. [Tr. 6-78]. In addition to the diminution in Consolidated’s going concern value, it has suffered lost profits in the form of revenues earned by City Gas from Consolidated’s former customers. These lost profits were determined by calculating the total amount of gross revenues collected from these customers and by subtracting the cost of gas. Because City Gas incurs virtually no variable costs in serving these accounts, none were deducted. The amount of Consolidated’s lost profits is $83,090.15 through September 30, 1985. [Tr. 5-130-133]. Therefore, we find Consolidated’s total compensatory damages to be $1,587,065.15.
III. CONCLUSIONS OF LAW: CONSOLIDATED’S MONOPOLIZATION CLAIM
Plaintiff Consolidated has alleged that Defendant City Gas violated § 2 of the Sherman Act by monopolizing and attempting to monopolize the natural gas market in south Florida. We think Consolidated has sustained its burden. Our discussion of Consolidated’s claim will be broken down into these component parts: (A) the relevant product market; (B) the relevant geo
*1516
graphic market; (C) monopoly power; (D) monopolistic intent; (E) the willful acquisition of monopoly power; (F) the willful maintenance of monopoly power; and (G) damages.
The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.
United States v. Grinnell Corp.,
384 U.S. 563, 570-71 , 86 S.Ct. 1698, 1704 , 16 L.Ed.2d 778 (1966). To determine whether City Gas is liable for a § 2 violation, we must first define the relevant market.
A.
The Relevant Product Market
The relevant product market consists of those products which are reasonably interchangeable with each other and for which there is a high “cross-elasticity of demand.”
Brown Shoe Co. v. United States,
370 U.S. 294, 325 , 82 S.Ct. 1502, 1523-24 , 8 L.Ed.2d 510 (1962). As the Supreme Court stated in
United States v. E.I. DuPont de Nemours & Co.:
In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that “part of the trade or commerce,” monopolization of which may be illegal.
351 U.S. 377, 395 , 76 S.Ct. 994, 1007 , 100 L.Ed. 1264 (1956). The Supreme Court in
DuPont
made clear that the test is not one simply of “functional” interchangeability, but one of “reasonable” interchangeability, an analysis which necessarily embraces a variety of additional factors. As the Court stated, “[the] market is composed of products that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered.”
Id.
at 404 , 76 S.Ct. at 1012 . A necessary and vital component of reasonable interchangeability analysis therefore is price. This factor calls for an appraisal of cross-elasticity of demand.
Id.
at 394 , 76 S.Ct. at 1007 .
Numerous courts, relying on the
DuPont
test, have rejected the view that where products are merely functionally interchangeable, they automatically comprise the same market. For example, the court in
Borden, Inc. v. F.T.C.
stated:
Borden’s contention that fresh lemons and ReaLemón are reasonably interchangeable emphasizes the similarity of the end uses of the two products, and de-emphasizes other factors such as price differences, low cross-elasticity of demand, and quality differences between fresh lemons and ReaLemon. However, under
United States v. E.I. DuPont de Nemours & Co.,
351 U.S. 377 , 76 S.Ct. 994 , 100 L.Ed. 1264 (1956)
(Cellophane),
all of these factors are to be considered in assessing the reasonable interchangeability of products. It is now well established that monopoly power is equated with the power to control prices or exclude competition. As a consequence, in examining whether competition from other products prevents the possession of monopoly power, “[p]rice and competition are so intimately entwined that any discussion of theory must treat them as one.”
Id.
at 392 , 76 S.Ct. at 1005 . In
Cellophane
the court discussed the reasonable interchangeability of products in terms of cross-elasticity of demand, and in terms of comparative costs of the products to consumers.
674 F.2d 498, 507 (6th Cir.1982) (footnotes omitted). Since there are possible substitutes for almost every product, the test of reasonable interchangeability is used to determine two things: (1) the products’ use or uses, and (2) their physical characteristics. In this manner, the total universe of possible substitutes may be ascertained for application of the cross-elasticity of demand test. The Supreme Court defined this process in
Times-Picayune Publishing Co. v. United States:
For every product, substitutes exist. But a relevant market cannot meaningfully encompass that infinite range. The circle must be drawn narrowly to
ex-
*1517
elude
any other product to which, within reasonable variations in price, only a limited number of buyers will turn; in technical terms, products whose “cross-elasticities of demand” are small.
345 U.S. 594 , 612 n. 31, 73 S.Ct. 872 , 882 n. 31, 97 L.Ed. 1277 (1953) (emphasis added).
To determine whether there is a high “cross-elasticity of demand” between two products, it is necessary to examine whether an increase in the price of one of the two products being considered for inclusion in the market would cause substantial substitution by its users of the other product under consideration. If substantial substitution takes place, then there is high “cross-elasticity of demand” and the products compete in the same market. If, however, a substantial price rise does not cause substantial substitution of the other product, there is low cross-elasticity of demand and the products do not compete in the same market.
Photovest Corp. v. Fotomat Corp.,
606 F.2d 704, 713-14 (7th Cir.1979),
cert. denied,
445 U.S. 917 , 100 S.Ct. 1278 , 64 L.Ed.2d 601 (1980).
The United States Department of Justice, in establishing enforcement guidelines in merger cases, has set forth a good common sense explanation of the process:
Taking the product of the merging firm as a beginning point, the Department will establish a provisional product market. The Department will include in the provisional market those products that the merging firm’s customers view as good substitutes at prevailing prices. The potential weakness of such a market based solely on existing patterns of supply and demand is that those patterns might change substantially if the prices of the products included in the provisional market were to increase. For this reason, the Department will test further and, if necessary, expand the provisional market. The Department will add additional products to the market if a significant percentage of the buyers of products already included would be likely to shift to those other products in response to a small but significant and non-transitory increase in price. As a first approximation, the Department will hypothesize a price increase of five percent and ask how many buyers would be likely to shift to the other products within one year. The Department will continue expanding the provisional market until it satisfies the general profitability standard stated above.
United States Department of Justice, Antitrust Division, Merger Guidelines, 47 Fed. Reg. 28,493 , 28,494-95 (1982) (footnotes omitted).
Application of these principles has led us to conclude that the relevant product market in this case is composed solely of natural gas. Although natural gas and LP gas may both be used to fuel gas appliances with relatively inexpensive modifications to the appliances, it is undisputed that where natural gas is available, LP gas simply cannot compete because of its overwhelming price disadvantage. [Tr. 6-295-296]. On the demand side, the evidence is clear that a five percent increase in the price of natural gas would not cause consumers to substitute LP gas, as the price of the latter is already roughly 100% higher than the price of natural gas. That the prices for these products are so far apart is alone substantial evidence that they no longer compete in the same product market, as prices within a product market tend towards uniformity.
Accordingly, it is not surprising that there is little or no cross-elasticity of demand between LP gas and natural gas. This finding is unaltered by the fact that consumers in areas where natural gas becomes available substitute natural gas for LP gas. While this substitution is attributable to price in a broad sense, it is not the kind of price-sensitive substitution to which economists refer in defining market boundaries. Instead, it is simply recognition that where natural gas is available, LP gas is not a factor in the market because the price of natural gas simply renders LP gas obsolete.
Thus, we find that there is no cross-elasticity of demand between natural gas and LP gas. The relevant product market is comprised solely of natural gas. Even if
*1518
we were to assume, however, that the relevant product market comprises both natural gas and LP gas, as City Gas has suggested, the result would remain wholly unchanged.
B.
The Relevant Geographic Market
Both parties agree that the appropriate test for the determination of relevant geographic market is stated in
Tampa Electric Co. v. Nashville Coal Co.:
[T]he area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for .supplies.
365 U.S. 320, 327 , 81 S.Ct. 623, 628 , 5 L.Ed.2d 580 (1961). In
Brown Shoe Co. v. United States,
the Supreme Court set forth the method by which the boundaries of relevant geographic markets may be established:
The criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. Moreover, just as a product submarket may have ... significance as the proper “line of commerce” so may a geographic submarket be considered the appropriate “section of the country.” Congress prescribed a pragmatic, factual approach to the definition of the relevant market and not a formal, legalistic one. The geographic market selected must, therefore, both “correspond to the commercial realities” of the industry and be economically significant.
370 U.S. 294, 336-37 , 82 S.Ct. 1502, 1530 , 8 L.Ed.2d 510 (1962) (citations omitted).
The
Tampa Electric
and
Brown Shoe
tests clearly establish the relevant geographic market for natural gas in this case to include all of the territory given to City Gas in its agreement not to compete with People’s Gas. [Tr. 6-299]. Indeed, both parties agree that Peoples’ service area is not properly considered as part of the relevant geographic market in this case. [Tr. 9-163]. Rather, City Gas contends that the relevant geographic market includes only Consolidated’s service area. We can find no economic significance to this proposed geographic area. We observe that City Gas’ pipes have run through much of Consolidated’s service area for quite some time, that City Gas was able to take customers away from Consolidated within its area, and that Consolidated’s customers are quite able to turn to City Gas to purchase natural gas. Thus, it is readily apparent that potential purchasers look beyond Consolidated’s service area for suppliers of natural gas. Moreover, City Gas, a company located outside of Consolidated’s service area, supplies customers in Consolidated’s service area with natural gas. Since the sellers within Consolidated’s service area also operate outside of it and purchasers in Consolidated’s service area turn to suppliers located outside of it, it is clear that the effective potential area of competition between City Gas and Consolidated is much broader than Consolidated’s service area.
Under
Tampa Electric,
City Gas’ niarket is the “market area in which the seller operates and to which the purchaser can practicably turn for supplies.” This is true both at wholesale and at retail. Prior to obtaining a FERC allocation, Consolidated could turn to no one except City Gas to obtain wholesale natural gas, as no other supplier was physically close enough to Consolidated’s system to make a connection economically feasible. [Tr. 3-19]. And retail customers in City Gas’ service area, and in the as yet unserved portions of southwest Dade County, could turn to no one but City Gas for natural gas since Consolidated had none to offer. [Tr. 1-25].
Moreover,. the relevant geographic market should encompass all of the service area City Gas serves, a substantial portion of Dade County and part of Broward County. The effects of demand and cost are spread throughout City Gas’ service area through the rate regulation process. [Tr. 6-298]. Thus, City Gas can cross-subsidize prices or costs in any one part of its territory with revenues earned in the rest of its service area. Accordingly, we find that the relevant geographic market is composed of the areas.in which Consolidated serves its
*1519
existing customers, the entire region served by City Gas, and the as yet unserved portions of southwest Dade County.
C.
Monopoly Power
Monopoly power is the “power to control prices or exclude competition.”
United States v. Grinnell Corp.,
384 U.S. 563, 571 , 86 S.Ct. 1698, 1704 , 16 L.Ed.2d 778 (1966) (quoting
United States v. E.I. DuPont de Nemours & Co.,
351 U.S. 377, 391 , 76 S.Ct. 994, 1005 , 100 L.Ed. 1264 (1956)). Cases dealing with non-regulated industries have developed a number of analytic tools to aid in determining market power. Frequently courts have approached the problem by defining first the relevant product and geographic markets and then computing the defendants’ market share from this statistical data. Where that data reveal a market share of more than 70 to 80 percent, the courts have inferred the existence of monopoly power. In this case, the facts quite clearly show that City Gas had a market share in retail natural gas of at least 97% [Tr. 7-3], far above the thresh-hold for actual monopoly power.
See, e.g., American Tobacco Co. v. United States,
328 U.S. 781, 797-98 , 66 S.Ct. 1125, 1133-34 , 90 L.Ed. 1575 (1946). Miller Gas, its only natural gas competitor, had a market share of 2.4%. [Tr. 7-3], Measured by new “hookups” to , serve customers, City Gas had 100% of the market in its service area. [Tr. 7-4]. In the wholesale market, City Gas sold 100% of the natural gas requested for resale in its service area. Moreover, even if we were to lump LP gas and natural gas in the same relevant product market, the record indicates that Defendant possessed monopoly power in that market too. Indeed, even considering sales of LP gas separately, Defendant sold some 4,436,984 therms of LP in 1982 compared to Consolidated’s sale of only 542,170 therms. [Plaintiff’s Ex. B-0011 (53 of 122); C-0062]. Finally, we observe that Defendant has failed to refute this definition of the relevant product market by any expert testimony.
However, “[r]eliance on statistical market share is a questionable approach in cases involving regulated industries____ A predominant market share may merely be the result of regulation, and regulatory control may preclude the exercise of monopoly power.”
Southern Pacific Communications Co. v. American Telephone & Telegraph Co.,
740 F.2d 980, 1000 (D.C.Cir.1984), cer
t. denied,
470 U.S. 1005 , 105 S.Ct. 1359 , 84 L.Ed.2d 380 (1985);
see MCI Communications Corp. v. American Telephone & Telegraph Co.,
708 F.2d 1081, 1106-07 (7th Cir.),
cert. denied,
464 U.S. 891 , 104 S.Ct. 234 , 78 L.Ed.2d 226 (1983);
Mid-Texas Communications Systems v. American Telephone & Telegraph Co.,
615 F.2d 1372, 1386-87 (5th Cir.),
cert. denied,
449 U.S. 912 , 101 S.Ct. 286 , 66 L.Ed.2d 140 (1980); Watson & Brunner,
Monopolization by Regulated “Monopolies”: The Search for Substantive Standards,
22 Antitrust Bull. 559, 565-68 (1977).
In many regulated industries, each purveyor of service, regardless of absolute size, is in a monopoly position with regard to its customers____ For these reasons, the size of a regulated company’s market share should constitute, at most, a point of departure in assessing the existence of monopoly power. Ultimately, that analysis must focus directly on the ability of the regulated company to control prices or exclude competition— an assessment which, in turn, requires close scrutiny of the regulatory scheme in question.
MCI Communications Corp.,
708 F.2d at 1107 (footnote omitted).
See, e.g., Travelers Insurance Co. v. Blue Cross,
361 F.Supp. 774, 780 (W.D.Pa.1972) (company was not a monopolist since it lacked control over rate-making mechanism),
aff'd,
481 F.2d 80 (3d Cir.),
cert. denied,
414 U.S. 1093 , 94 S.Ct. 724 , 38 L.Ed.2d 550 (1973);
Redwing Carriers, Inc. v. McKenzie Tank Lines, Inc.,
443 F.Supp. 639, 641 (N.D.Fla.1977), aff
'd,
594 F.2d 114 (5th Cir.1979) (where price for transportation of item is set by regulatory agency, fact that one shipper may obtain a monopoly is irrelevant since price will be unaffected);
Nankin Hospital v. Michigan Hospital Service,
361 F.Supp. 1199 , 1209-10 & n. 33 (E.D.Mich.1973) (company does not possess
*1520
monopoly power since rates are controlled and actively reviewed by state insurance commission).
The fact that a defendant may have had the largest share or the entire share of a market may not be sufficient alone to establish monopoly power if state or federal regulation prevented the defendant from having the power to restrict entry or control prices.
MCI Communications Corp.,
708 F.2d at 1107 . In short, we must also examine the realities of the regulatory scheme.
Southern Pacific Communications Co.,
740 F.2d at 1001 . If pricing and interconnection decisions are left to the defendant rather than to the regulatory agency in the first instance, then it cannot fairly be said that a regulatory agency prevented a defendant from controlling price or excluding competition.
Id.
Additionally, costs and delays imposed by the regulatory process must be considered barriers to entry.
Id.
“The defendant’s innocence or blameworthiness, however, has absolutely nothing to do with whether a condition constitutes a barrier to entry.”
Id.
Applying this regulatory analysis to the case at bar, we must consider in sum whether the overwhelming statistical evidence as to Defendant’s monopoly power was rebutted by any evidence that City Gas was unable to control prices or exclude competition. Gity Gas adduced little evidence regarding the effects of regulatory agencies, if any, on its ability to control price or exclude competition. A review of the evidence presented by both parties has led us to conclude that City Gas did indeed have monopoly power.
First, although the FPSC approves City Gas’ rates in the
wholesale market
for the resale of natural gas, City Gas, like AT & T, proposes the rates in the first instance, reaches an agreement with the buyer company, and then simply submits the agreement to the FPSC for its approval. Moreover, because Fla.Stat. § 366.03 (1985) states that natural gas utilities shall not be required to resell gas, it is unclear whether the FPSC could compel City Gas to sell at any particular rate. Second, FERC, the federal regulator of wholesale natural gas, does not control intrastate sales of natural gas. Thus, City Gas cannot rely on this regulator in asserting any sort of regulatory defense. Rather, it appears that City Gas was able to resell gas at will, essentially without regulatory intervention. We find on this record that City Gas had the power to control prices and exclude competition in the wholesale natural gas market.
As to the
retail market,
it is clear that the FPSC regulates City Gas’ rates to customers and the entry of new suppliers into the retail natural gas market. However, because a potential entrant into this market must obtain a natural gas supply first, from either FGT (after receiving a FERC allocation) or from City Gas, the fundamental realities of the situation are that City Gas has significant control over price and entrants to the retail market. This is further evidenced by the fact that the FPSC has approved two resale gas agreements to which City Gas is a party — one for one cent per therm over cost and one for seven cents per therm over cost — without any apparent reason for this disparity. These additional costs are then passed on to the consumer, suggesting that the fee City Gas sets is actually reflected in retail rates. This indicates that the regulatory scheme is structured in such a manner that at least some retail pricing decisions are made by City Gas in the first instance. We find that City Gas had substantial power to control prices in the retail natural gas market.
We also find, significantly, that City Gas had monopoly power due to the presence of high barriers to entry. Costs and delays imposed by the regulatory process are important barriers to entry.
Southern Pacific Communications Co.,
740 F.2d at 1001 , This issue was addressed in
United States v. American Telephone & Telegraph Co.:
[A] persuasive showing has been made that [AT & T has] monopoly power (wholly apart from FCC orders with respect to interconnection) through various barriers to entry, such as the creation of bottlenecks, entrenched customer preferences, the regulatory process, large capital requirements, access to technical informa
*1521
tion, and disparities in risk. These factors, in combination with the evidence of market shares, suffice at least to meet the government’s initial burden, and the burden is then appropriately placed upon defendants to rebut the existence and significance of barriers to entry. On that basis, the defendants’ regulatory defense to the government’s claim of monopoly power must and will be rejected.
524 F.Supp. 1336, 1347-48 (D.D.C.1981) (footnotes omitted). The natural gas industry' also presents any newcomer with the requirement of large initial capital outlays, lengthy construction programs and regulatory delays, such as those experienced by Consolidated in obtaining a natural gas allocation from the FERC. These entry barriers, combined with City Gas’ overwhelming market share, compel a finding of monopoly power. Furthermore, although City Gas did not squarely assert a regulatory defense to monopoly power, we find, on the basis of the regulatory scheme evidence which was presented, that any such defense would be rejected. In sum, City Gas had monopoly power in the relevant market.
D.
Intent to Monopolize
The existence of monopoly power in the relevant market, however, does not by itself prove the offense of actual monopolization. A monopolist’s behavior is not unlawful unless the monopolist has engaged in the
“willful
acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”
United States v. Grinnell Corp.,
384 U.S. 563, 570-71 , 86 S.Ct. 1698, 1704 , 16 L.Ed.2d 778 (1966) (emphasis added). A general intent to monopolize is all that is ordinarily required in monopolization cases.
United States v. Griffith,
334 U.S. 100, 107 , 68 S.Ct. 941, 945 , 92 L.Ed. 1236 (1948),
overruled on other grounds, Copperweld Corp. v. Independence Tube Corp.,
467 U.S. 752 , 104 S.Ct. 2731 , 81 L.Ed.2d 628 (1984). A specific intent to restrain competition or to achieve a monopoly is not required.
Id.
In unregulated settings, the precise dimensions of the general intent standard have been the subject of considerable litigation and varying formulas.
See United States v. United Shoe Machinery Corp.,
110 F.Supp. 295, 342 (D.Mass.1953),
aff'd per curiam,
347 U.S. 521 , 74 S.Ct. 699 , 98 L.Ed. 910 (1954). Some courts, building upon Judge Learned Hand’s opinion in
United States v. Aluminum Co. of America,
148 F.2d 416 (2d Cir.1945), have concluded that monopolistic conduct can be presumed from the possession of. monopoly power unless the accused business demonstrates that its market power was “thrust upon it.”
Id.
at 429 . Under this approach, if the ordinary business conduct of a dominant firm leads to the acquisition or maintenance of monopoly power, that conduct is presumed to reflect the requisite monopolistic intent.
This approach, however, has been specifically rejected when attempting to identify monopolistic conduct by a regulated utility.
See, e.g., MCI Communications Corp.,
708 F.2d at 1108 ; Watson & Brunner,
Monopolization by Regulated .“Monopolies”: The Search for Substantive Standards,
22 Antitrust Bull. 559, 575-79 (1977). The rationale behind this finding is that in many regulated industries, anticipating and meeting all reasonable demands for service is a statutory obligation.
MCI Communications Corp.,
708 F.2d at 1108 . Consequently, “[t]o apply the
Alcoa
presumption to such conduct would be tantamount to holding that adherence to a firm’s regulatory obligation could, by itself, constitute improper willfulness in a section 2 monopolization case.”
Id.
Thus, at least one court has suggested that in cases involving a regulated utility the plaintiff must prove that each of the allegedly anticompetitive acts was done with the intent to maintain a monopoly in the relevant market.
Id.
One commentator, who also suggests that the
Alcoa
standard should be abandoned when dealing with regulated utilities, suggests that in developing an appropriate standard three concerns should be addressed: First, “conduct that implements a clearly articulated public policy against competition in a particular industry should not be the kind of exclusionary conduct that demonstrates willful monopolization.”
Watson & Brun
*1522
ner, supra,
at 577. Second, actions or refusals to act (such as expanding facilities to meet anticipated growth in demand) required because of status as a public utility should not be deemed predatory conduct.
Id.
at 578. Third, reasonable actions legitimately taken by a regulated utility to protect its ability to provide reliable service to its customers should not be deemed evidence of improper intent.
Id.
at 579. It is in the context of these concerns that the Seventh Circuit found that “ ‘something more than general intent should be required to establish a Sherman Act violation’ ” when dealing with a regulated utility.
MCI Communications Corp.,
708 F.2d at 1108 (quoting
City of Mishawaka v. American Electric Power Co.,
616 F.2d 976, 985 (7th Cir.1980),
cert. denied,
449 U.S. 1096 , 101 S.Ct. 892 , 66 L.Ed.2d 824 (1981)).
In the instant case, as we shall discuss at length, certain aspects of the anticompetitive conduct at issue, we believe, are not regulated by any state or federal agency on a consistent basis. Consequently, it is unclear to us that we need go as far as the
MCI Communications Corp.
court in declaring that to establish intent, each allegedly anticompetitive act must be proven to have been done with the intent to maintain a monopoly. Nevertheless, we conclude that in fact this is the case. Thus, whether we apply a general intent standard, something “more than general intent,” or indeed even a specific intent standard, we find that Consolidated has proven the requisite intent. As for the public utility concerns raised by Watson and Brunner, we address the first and third issues as defenses to the specific types of anticompetitive conduct to which they relate; the second issue is simply not anticompetitive conduct upon which our decision rests.
City Gas has demonstrated an intent to monopolize the relevant market through a number of individual acts and admissions of its intent. Principally, we shall address the following acts: (1) City Gas’ 1960 territorial agreement whereby the parties agreed not to compete with each other in the sale of natural gas in Florida; (2) City Gas’ refusal to sell or transport natural gas to Consolidated at a reasonable price; and (3) City Gas’ efforts to acquire Consolidated in order to eliminate it as a potential competitor. We also discuss the following acts which, we believe, when viewed together with the principal acts, are still further evidence of City Gas’ intent to monopolize: (1) City Gas’ use of its monopoly power to acquire Nationwide and Miramar, two small potential competitors; (2) City Gas’ intervention in Consolidated’s FERC proceeding to oppose Consolidated’s application for a natural gas allocation; and finally (3) City Gas’ use of price discrimination to take Consolidated’s customers by not charging them City Gas’ customary contribution in aid of construction to extend service to them.
E.
The Willful Acquisition of Monopoly Power: The Territorial Agreement
The division of markets by competitors is a restraint of trade and is prohibited by § 1 of the Sherman Act. 2 Von Kalinowski, Antitrust Laws and Trade Regulations § 6F.01 (1986). The practice of allocating territories between competitors at the same level of the market structure (horizontal market division) is seen as having no purpose other than the elimination of competition and is deemed illegal per se.
See, e.g., United States v. Topco Associates,
405 U.S. 596, 607-08 , 92 S.Ct. 1126, 1133-34 , 31 L.Ed.2d 515 (1972). For although courts generally utilize a “rule of reason” approach in evaluating the legality of restraints alleged to be violative of the Sherman Act, certain business relationships are considered to be so uniformly anticompetitive that they are deemed to be per se violations of the Sherman Act without regard to any consideration of their reasonableness.
Id.
at 607 , 92 S.Ct. at 1133 . Justice Black explained the need for per se rules:
[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or
*1523
the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.
Id.
(quoting
Northern Pacific Railway Co. v. United States,
356 U.S. 1, 5 , 78 S.Ct. 514, 518 , 2 L.Ed.2d 545 (1958)). “It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.”
Topeo,
405 U.S. at 607-08 , 92 S.Ct. at 1133 . One of the classic examples of a per se violation of § 1 of the Sherman Act is horizontal market division.
Id.
at 608, 92 S.Ct. at 1133-34 . Moreover, if as a result of horizontal market division a company acquires monopoly power, it also violates § 2 of the Sherman Act. Such are the allegations in this case.
See United States v. Grinnell Corp.,
384 U.S. 563, 576 , 86 S.Ct. 1698, 1706-07 , 16 L.Ed.2d 778 (1966).
As we have detailed already, in September 1960, Defendant City Gas entered into a territorial agreement with Peoples, which delineated distinct natural gas service areas for each of these principal competitors; each company bound itself not to compete in the other’s territory. In accordance with its terms, the agreement was submitted by the parties to the Florida Public Utilities Commission (now the “FPSC”), which gave its formal approval and observed that such agreements were in the public interest and should be encouraged.
In 1962 Peoples filed a claim in circuit court alleging that City Gas had violated the 1960 agreement. City Gas responded by asserting, among other things, that the agreement was void as violative of Florida’s antitrust laws and the Sherman Act. The case proceeded through the Florida state court system, and, in 1965, the Florida Supreme Court upheld the agreement.
City Gas Co. v. Peoples Gas System,
182 So.2d 429 (Fla.1965). The court concluded that the FPSC had adequate implied authority under Chapter 366, Florida Statutes, to validate such an agreement.
Id.
at 436 . The court also found that Florida’s antitrust laws were designed to prohibit only unreasonable restraints on trade, and that the public did not need the state’s antitrust laws to protect it against this type of agreement because the public interest was adequately protected by Chapter 366, Florida Statutes. The court concluded that although the agreement could result in monopolistic control, the FPSC’s statutory powers over the regulated companies were more than sufficient to prevent monopolistic pricing, production and quality of service.
Id.
at 435 . In upholding the agreement, the court did not specifically address the applicability of the Sherman Act.
City Gas now claims that because the FPSC approved the territorial agreement and because the Florida Supreme Court upheld this agreement against an attack based on the Florida antitrust laws, the agreement is necessarily immune from attack under the federal antitrust laws. Defendant argues that its conduct here was reasonable, and authorized by the Florida Supreme Court, and therefore lawful. Its analysis ends with that point. While horizontal market division is normally considered a per se violation of the Sherman Act, the so-called “state action” exemption in fact will immunize certain types of conduct from antitrust liability. And while not squarely asserted by the Defendant beyond the citation of the Florida Supreme Court case, this issue is indeed a serious one requiring thorough analysis.
The state action doctrine exempts from antitrust liability acts by the state or those that bear a close relationship to state power or authority. The doctrine originated with
Parker v. Brown,
317 U.S. 341 , 63 S.Ct. 307 , 87 L.Ed. 315 (1943). In
Parker ,
a state statute for marketing raisins restricted competition among growers and maintained prices to packers.
Id.
at 355 , 63 S.Ct. at 315 . An action was commenced
*1524
against state officials seeking to enjoin them from enforcing the raisin marketing program. The Court held that the Sherman Act did not prohibit the state from imposing this restraint on competition since it was an act of government. The
Parker
decision was based on the principle of preemption. 6 Yon Kalinowski, Antitrust Laws and Trade Regulations § 46.02 (1986). The critical issue was whether Congress, in enacting the Sherman Act, had intended to occupy the field of state-sanctioned anticompetitive activity.
Id.
The Supreme Court concluded that it had not, and thus that the legislative interests of the states had to be accommodated. 317 U.S. at 352 , 63 S.Ct. at 314 .
The
Parker
doctrine has evolved in recent years through a number of cases. Two requirements for state action immunity have emerged:
first,
the anticompetitive conduct must be undertaken pursuant to a clearly articulated and affirmatively expressed policy of the state to displace competition; and,
second,
the anticompetitive conduct must be actively supervised by the state.
California Retail Liquor Dealers Association v. Midcal Aluminum, Inc.,
445 U.S. 97 , 100 S.Ct. 937 , 63 L.Ed.2d 233 (1980).
2
This test applies to actions brought against private parties as well as those brought against the state officials who implement the conduct.
Southern Motor Carriers Rate Conference, Inc. v. United States,
471 U.S. 48, 56-57 , 105 S.Ct. 1721, 1726-27 , 85 L.Ed.2d 36 (1985).
3
The rules of state action may be summarized as follows. When a state acts
*1525
in its soverign capacity, its actions are immune from federal antitrust scrutiny.
Parker,
317 U.S. at 352 , 63 S.Ct. at 314 (act of state legislature is act of state). “[W]hen a state legislature adopts legislation, its actions constitute those of the State____”
Hoover v. Ronwin,
466 U.S. 558, 567-68 , 104 S.Ct. 1989, 1995 , 80 L.Ed.2d 590 (1984).
4
Additionally, “a state supreme court, when acting in a legislative capacity, occupies the same position as that of a state legislature.”
Id.
at 568 , 104 S.Ct. at 1995.
See Bates v. State Bar,
433 U.S. 350, 359-63 , 97 S.Ct. 2691, 2696-98 , 53 L.Ed.2d 810 (1977) (state supreme court rule that restricted advertising by lawyers is act of state).
5
Contra Goldfarb v. Virginia State Bar,
421 U.S. 773, 775, 793 , 95 S.Ct. 2004, 2007, 2016 , 44 L.Ed.2d 572 (1975) (enforcement by state bar of county bar’s minimum fee schedule for lawyers is not act of state).
6
When a state acts in its sovereign capacity, it is unnecessary to apply the two-pronged
Midcal Aluminum
test; the act is simply immune from the antitrust laws.
But when the anticompetitive activity is carried out by private parties pursuant to state authorization, which includes authorization by a state agency,
both
parts of the
Midcal Aluminum
test must be satisfied.
Southern Motor Carriers,
471 U.S. at 60-63 , 105 S.Ct. at 1728-30 . “This requirement insures that the anticompetitive conduct be actually intended by the state as part of its regulatory scheme.” 6 Von Kalinowski, Antitrust Laws and Trade Eegulation § 46.04[3] (1986).
See Southern Motor Carriers,
471 U.S. at 65-66 , 105 S.Ct. at 1731 (collective ratemaking via state public service commissions, permitted by statute in three states and permitted pursuant to clearly articulated state policy in fourth state, is immune from the antitrust laws);
New Motor Vehicle Board v. Orrin W. Fox Co.,
439 U.S. 96, 109 , 99 S.Ct. 403, 412 , 58 L.Ed.2d 361 (1978) (state
*1526
agency’s decisions were outside reach of antitrust laws because state statute’s regulatory scheme was clearly articulated and designed to displace competition in the relevant area).
7
Contra Midcal Aluminum,
445 U.S. at 105-06 , 100 S.Ct. at 943 (although legislative policy clearly articulated purpose to permit resale price maintenance, the program was not immune from the antitrust laws due to inadequate state supervision);
Cantor v. Detroit Edison Co.,
428 U.S. 579, 584-85 , 96 S.Ct. 3110, 3114-15 , 49 L.Ed.2d 1141 (1976) (electric utility’s free light bulb tariff which was approved by public service commission was not exempt from the antitrust laws because there was no evidence of any state policy or statute relating to light bulbs).
8
In the instant case, the territorial agreement was approved by a state agency, possibly pursuant to Chapter 366, Florida Statutes. The restraint was not approved by a state legislature or by the state supreme court acting as sovereign. Consequently this conduct must satisfy both parts of the
Midcal Aluminum
test in order for it to be immune from the antitrust laws. We must decide whether the FPSC, a nonsovereign state agency, acted pursuant to a clearly articulated and affirmatively expressed state policy in approving the territorial agreement,
and
whether such agreements are actively supervised by the FPSC.
1.
The First Prong: No Clearly Articulated State Policy
The FPSC derives its power from Chapter 366, Florida Statutes. This Chapter defines a public utility to include any supplier of gas — natural, manufactured or similar gaseous substance — with exceptions which are not relevant here except that, notably, a person supplying LP gas is
not
a public utility. Fla.Stat. § 366.02 (1985). The powers of the FPSC with respect to public utilities are enumerated in § 366.05. They include the following powers:
(1) In the exercise of such jurisdiction, the commission shall have power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each public utility; to require repairs, improvements, additions, and extensions to the plant and equipment of any public utility when reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto; to employ and fix the compensation for such examiners and technical, legal, and clerical employees as it deems necessary to carry out the provisions of this chapter; and to prescribe all rules and regulations reasonably necessary and appropriate for the administration and enforcement of this chapter.
Conspicuously absent from this broad list of powers is
any
reference to establishment of territories or resolution of territorial disputes. However, as noted in
Southern Motor Carriers:
A private party acting pursuant to an anticompetitive regulatory program need
*1527
not “point to a specific, detailed legislative authorization” for its challenged conduct. Lafayette v. Louisiana Power & Light Co.,
435 U.S. [389] at 415[ 98 S.Ct. 1123, at 1138 , 55 L.Ed.2d 364 (1978)] (opinion of BRENNAN, J.). As long as the State as sovereign clearly intends to displace competition in a particular field with a regulatory structure, the first prong of the
Midcal
test is
satisfied____
If more detail than a clear intent to displace competition were required of the legislature, States would find it difficult to implement through regulatory agencies their anticompetitive policies. Agencies are created because they are able to deal with problems unforeseeable to, or outside the competence of, the legislature. Requiring express authorization for every action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness. Cf.
Hallie v. Eau Claire
[ 471 U.S. 34 ],
ante,
at 44 [ 105 S.Ct. 1713, at 1719 , 85 L.Ed.2d 24 (1985) ] (requiring explicit legislative authorization of anticompetitive activity would impose “detrimental side effects upon municipalities’ local autonomy”). Therefore, we hold that if the State’s intent to establish an anticompetitive regulatory program is clear, as it is in Mississippi, the State’s failure to describe the implementation of its policy in detail will not subject the program to the restraints of the federal antitrust laws.
471 U.S. at 64-65, 105 S.Ct. at 1731 (footnote omitted).
It is clear from Chapter 366 that the Florida legislature intended to substitute competition between public utilities for a regulatory program which would include foreseeable anticompetitive effects. This is particularly clear from the list of powers which the FPSC has over public utilities. Although the focus of the list seems to be on rates, it includes quality of service and repair language as well.
The case presently before this Court may be in some measure analogous to
Southern Motor Carriers.
In
Southern Motor Carriers,
the public service commission had broad authority to prescribe rates but lacked specific authority to allow collective ratemaking. The Court held that specific authority was not necessary because the legislature intended that rates would be set by a regulatory agency, and that collective ratemaking was just one detail of this inherently anticompetitive ratesetting process. 471 U.S. at 63-64, 105 S.Ct. at 1730-1. Arguably, the same could be said about Florida’s ratemaking structure. Nevertheless, we are convinced that the power to authorize territorial agreements, which by their purpose and effect exclude competition within defined geographic boundaries, is not simply a detail of the FPSC’s explicit authority to regulate rates, or to require repairs and improvements, or to hire employees or fix compensation for examiners. Moreover, there is nothing unforeseeable about the creation or regulation of territorial agreements not to compete in regulated industries such as this one. This is particularly true where, as we note below, the Florida legislature has
expressly
and
affirmatively
given the FPSC the power to establish and regulate exclusive territories in such related public utilities as the telephone industry, water and sewer utilities, and rural electric cooperatives. The most that can be said here is that territorial agreements, although not mentioned at all in Chapter 366 as to natural gas utilities, have an undisputable effect upon rates. In one FPSC order which addressed proposed tariffs and the resolution of a natural gas territorial dispute, the FPSC analyzed how each company’s rate of return would be affected if it received or lost the territory in question.
In re: Tariff filed by Miller Gas Company
and
In Re: Petition of City Gas Company,
Docket Nos. 850115-GU, 850118-GU, Order No. 15268, 85 FPSC 10 :205 (October 18, 1985). The FPSC noted that loss of the customer “would force Miller to seek significant increases in the rates to its residential and commercial customers.”
Id.
at 3 .
“Agency approval may be undoubted in fact, clearly authorized by state law, and yet not constitute an expression of state policy that is meant to be contrary to the federal antitrust laws.” 1 P. Areeda & D. Turner, Antitrust Law 11214b (1978). One method which commentators have suggest
*1528
ed to determine legislative intent is the “central purpose” test.
Id.
at ¶ 214b4. Professors Areeda and Turner have noted that the primary objective of most state public utility regulations is the prevention of consumer exploitation by the regulated industry. Thus agency approval might mean that in the agency’s judgment consumers are not injured by the practice, rather than that the practice is necessary to increase consumer welfare. In reviewing the instant territorial agreement, however, it is clear that the FPSC thought that the agreement was necessary to increase consumer welfare. The FPSC has stated numerous times that territorial agreements are in the public interest because they “will minimize, and perhaps even eliminate, unnecessary and uneconomical duplication of plant and facilities____” Order No. 2948, Docket No. 6081-EU;
see, e.g., Re Florida Power Corporation, 18
P.U.R.3d 411, 412 (FPSC 1969);
Re Florida Power & Light Co.,
71 P.U.R.3d 362 , 364 (FPSC 1967). Consequently, an application of the central purpose test at least suggests that territorial agreements may be part of the FPSC’s central purpose in regulating the natural monopoly characteristics of natural gas.
There is, however, powerful contrary authority which leads us to the conclusion that the legislature did not intend to give the FPSC the power to approve territorial agreements between natural gas companies. In the first place, in other Florida statutes dealing with specific utilities, the legislature affirmatively gave the FPSC the power to establish exclusive territories for telephone companies (Fla.Stat. § 364.335-.337),
9
and water and sewer utili
*1529
ties (Fla.Stat. § 367.041-.055),2 3******
10
and to resolve territorial disputes between rural electric cooperatives (Fla.Stat. § 366.04).
11
By virtue of the fact that the legislature specifically addressed these utilities, it can be implied, as a sound rule of statutory construction, that it would have included such a provision for natural gas companies if it had intended to delegate such powers.
See, e.g., J. Ray McDermott & Co. v. Vessel Morning Star,
457 F.2d 815, 818 (5th Cir.),
cert. denied,
409 U.S. 948 , 93 S.Ct. 271 & 292, 34 L.Ed.2d 218 (1972) (“Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied where excluded.”);
State Highway Commission v. Volpe,
479 F.2d 1099 , 1114 (8th Cir.1973) (“‘[wjhere Congress has consistently made express its delegation of a particular power, its silence is strong evidence that it did not intend to grant the power.’ ” (citations omitted));
Western States Newspapers, Inc. v. Gehringer,
203 Cal.App.2d 793 , 22 Cal.Rptr. 144 (1962); 2A Sutherland Stat. Const. § 51.02 (4th ed. 1984);
see also Shell Oil Co. v. Federal Energy Administration,
*1530
400 F.Supp. 964, 968 (S.D.Tex.1975),
aff'd,
527 F.2d 1243 (Temp.Emerg.Ct.App.1975) (“An intentional omission of a word is evidence that Congress did not intend to grant a power which the inclusion of the word would have given.” (citations omitted)).
Furthermore, in a recent FPSC Order, the FPSC itself questioned its authority to resolve territorial disputes between natural gas companies but decided the Petitions before it without reaching this issue.
In re: Tariff filed by Miller Gas,
85 FPSC 10 :205 at 5-6 (October 18, 1985). The FPSC stated:
It is not clear that this Commission has the statutory authority to either establish exclusive service territories for natural gas utilities (as it does for telephone, water and sewer utilities) or resolve territorial disputes between natural gas utilities (as specifically authorized for electric utilities). However, our resolution of this question is not necessary in view of our finding that Miller is the appropriate utility to serve WASA’s natural gas requirements for both the water pumps and the lime kiln.
Id.
This authority seems to provide an even stronger indication that the Florida legislature did not intend to give the FPSC the power to approve territorial agreements between natural gas companies. Moreover, a review of FPSC decisions regarding this territorial agreement shows that the FPSC has known for at least 14 years that this agreement might violate the federal antitrust laws.
See In re: Investigation of Territorial Agreement Between Peoples Gas System and City Gas Co.,
Order No. 5495, Docket 72040-GU (July 25, 1972), as modified by Order No. 5800 (July 11, 1973). Despite its initial concern, however, on rehearing, the FPSC distinguished the cases which had found territorial agreements to be violative of the antitrust laws and reaffirmed its position that it had the authority to approve these agreements. Notably, the FPSC stated that
City Gas
contended “that due to recent legal developments it is now clear that the territorial agreement is invalid under the federal antitrust law and that this Commission should not put itself in the position of ordering the Respondents to continue to adhere to an unlawful agreement.” Order No. 5495 at 2.
Of particular significance is the authority the FPSC cites as the source of its power to approve territorial agreements. It cites not Chapter 366 or any other state statute, but the Florida Supreme Court’s decision in
City Gas Co. v. Peoples Gas System,
182 So.2d 429 (Fla.1965). Indeed, the FPSC has cited this case for this proposition in numerous cases involving territorial agreements.
See, e.g., Re Florida Power Corp.,
78 P.U.R.3d 411 , 412 (FPSC 1969);
Re Florida Power & Light Co.,
71 P.U.R.3d 362 , 364 (FPSC 1967). State supreme, court authority, however, does not form the basis for a clearly articulated state policy except when the court acts in its legislative capacity. In the
City Gas Co.
case relied upon, the Florida Supreme Court was acting in its judicial capacity; it did not by affirmative command adopt, supervise and enforce its own rule. Consequently, this decision cannot form the basis for state action immunity. For the same reason, the other Florida Supreme Court cases which uphold territorial agreements and are cited by Defendant are not controlling.
See, e.g., Storey v. Mayo,
217 So.2d 304 (Fla.1968),
cert. denied,
395 U.S. 909 , 89 S.Ct. 1751 , 23 L.Ed.2d 222 (1969);
Peoples Gas System v. Mason,
187 So.2d 335 (Fla.1966).
Being mindful that
Midcal Aluminum
requires that the FPSC act pursuant to a clearly articulated and affirmatively expressed state policy, we cannot say that such a policy exists in view of the legislature’s specific grant of similar power to the FPSC with regard to other utilities and the pronounced absence of such an express grant with respect to natural gas companies. While in the absence of these legislative enactments such a position might at least be arguable in light of
Southern Motor Carriers,
when these enactments are considered, as we think they must be, we do not think that even under the most liberal reading of
Southern Motor Carriers
that a
clearly
articulated state policy to allow approval of territorial agreements by the FPSC can be found.
*1531
It is not for the federal courts to question why a state legislature chooses to state expressly a policy regarding territorial agreements as to some utilities and not as to others. Rather, it is for us to note only that such a clearly expressed state policy does not exist in Florida as to natural gas territorial agreements. If the Florida legislature wishes to establish such a policy, it is free to do so. But for us to imply that the legislature intended to make such a statement about so important a matter would create the kind of interference with state sovereignty which
Parker
was intended to prevent.
2.
The Second Prong: Absence of Active Supervision of Territorial Agreements
Turning to the second part of the
Midcal Aluminum
test, the issue becomes whether the FPSC actively supervised territorial agreements between natural gas companies. “[T]he adequate supervision criterion ensures that state-federal conflict will be avoided in those areas in which the state has demonstrated its commitment to a program through its exercise of regulatory oversight. At the same time, it guarantees that when the Sherman Act is set aside, private firms are not left to their own devices.” 1 P. Areeda & D. Turner, Antitrust Law If 213a (1978). In order to meet this test, supervision does not have to be rigorous.
Id.
at II 213c. An allegation “that state officials customarily ‘rubber stamp’ the self-interested decisions or recommendations of the private parties involved should not ordinarily oust
Parker
immunity.”
Id.
However, in situations where a regulated firm submits tariffs to an agency, and the tariffs take effect unless the agency disapproves them,
Parker
immunity will not lie.
Id.
at 11213f. Agency inaction will not satisfy the active supervision requirement.
A few cases have addressed how much supervision is adequate. At one end of the spectrum is
Midcal Aluminum
where the state simply enforced the prices established by private parties. 445 U.S. at 105-06 , 100 S.Ct. at 943 . The Court held that this did not meet the requirement of active supervision. Some supervision was required in
Coin Call, Inc. v. Southern Bell Telephone & Telegraph Co.,
where the court found that even assuming the coin telephone tariff was in large measure produced by defendant’s initiative, that it met the second prong of
Midcal
because the PSC actively enforced the original tariff and participated in its revision. 636 F.Supp. 608, 614 (N.D.Ga.1986). In another case, a district court found that a city did not actively supervise a private company to whom it had granted the exclusive right to perform electrical inspections where the city exercised control over standards, methods and/or practices employed by the private company in its inspections but maintained no control over the private party’s fees.
Englert v. City of McKeesport,
637 F.Supp. 930, 933 (W.D.Pa.1986). Last, in
Tambone v. Memorial Hospital,
a court found that hospital peer review actions were not actively supervised by the state. 635 F.Supp. 508, 514-15 (N.D.Ill.1986). The court stated that although the Department of Health had access to peer review materials, inspectors were not obligated to inspect these materials. Thus, there was no regular organized supervision of the peer review process.
Little evidence of the FPSC’s supervision of territorial agreements was adduced during this trial. It is clear that territorial agreements are not required to be submitted to the FPSC to become effective, but that when they are submitted, the FPSC will act upon them. It also appears from a review of FPSC orders regarding this agreement, that the FPSC enforces the agreement or considers its revision, after a hearing,
only
when someone complains to it or petitions for a review of the agreement. The FPSC does not review the agreement on its own initiative. Thus, as the FPSC seems to supervise territorial agreements only on a sporadic basis, the FPSC does not appear to have met even the less rigorous
Coin Call, Inc.
adequate supervision standard. Unlike the situation in
Coin Call, Inc.,
we have been presented with no evidence that the FPSC
actively
enforces the territorial agreements it ap
*1532
proves, or that it participates in the revision of such agreements. If we apply the ipore rigorous
Englebert
or
Tambone
standard, the FPSC definitely would not be seen as engaging in active supervision. There is no evidence that the FPSC has established any standards for the creation of territorial agreements or that territorial agreements are reviewed on a regular basis in the absence of a petition by a party or utility customer for reconsideration. On this record, we find that the FPSC does not adequately supervise natural gas territorial agreements and accordingly, we must conclude that the second prong of the
Midcal Aluminum
test has not been met.
Because we have found that City Gas has monopoly power in the relevant market, and that it acquired that power by virtue of a territorial agreement that was not immune from the scope of the antitrust laws, we conclude that City Gas has violated § 2 of the Sherman Act. For in the absence of state action immunity, a territorial agreement, even one between regulated utilities, is a per se violation of the Sherman Act.
See, e.g., Gainesville Utilities Department v. Florida Power & Light Co.,
573 F.2d 292, 299-300 (5th Cir.1978), ce
rt. denied,
439 U.S. 966 , 99 S.Ct. 454 , 58 L.Ed.2d 424 (1978);
Pennsylvania Water & Power Co. v. Consolidated Gas, Electric, Light & Power Co.,
184 F.2d 552, 558 (4th Cir.),
cert. denied,
340 U.S. 906 , 71 S.Ct. 282 , 95 L.Ed. 655 & 656 (1950);
accord Montana-Dakota Utilities Co. v. Williams Electric Cooperative,
263 F.2d 431 (8th Cir.1959).
F.
The Willful Maintenance of Monopoly Power: Refusals to Deal; Other Predatory Acts
Consolidated also has contended that City Gas’ failure to negotiate in good faith a reasonable rate for natural gas sales or transportation amounts to an illegal refusal to deal in violation of § 2 of the Sherman Act. We agree and conclude that Defendant’s refusal to deal with Plaintiff in the context of this case is an even more compelling and altogether independent basis to sustain a finding that § 2 has been violated.
In general there exists no duty to deal, so long as the decision not to deal is made unilaterally.
See, e.g., Associated Press v. United States,
326 U.S. 1, 14-15 , 65 S.Ct. 1416, 1421-22 , 89 L.Ed. 2013 (1945);
United States v. Colgate & Co.,
250 U.S. 300, 307 , 39 S.Ct. 465, 468 , 65 L.Ed. 992 (1919). This rule was enunciated by the Supreme Court: “In the absence of any purpose to create or maintain a monopoly, the [Sherman] act does not restrict the long recognized right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” 250 U.S. at 307 , 39 S.Ct. at 468 . Where a firm is a monopolist, however, additional obligations are imposed which would not attach in the ordinary refusal to deal context.
Byars v. Bluff City News Co.,
609 F.2d 843, 855 (6th Cir.1979). Consequently, Section 2 violations have been found where a firm with monopoly power at one level of the distribution chain refuses to deal with competitors at another level of the distribution chain, in order to drive these companies out of business so that the monopolist can integrate vertically and achieve a monopoly at both levels.
See, e.g., Otter Tail Power Co. v. United States,
410 U.S. 366 , 93 S.Ct. 1022 , 35 L.Ed.2d 359 (1973);
MCI Communic

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1668318. Public record. Not legal advice.