# The Central West Utility Company v. Federal Power Commission > Court of Appeals for the Third Circuit · August 6, 1957 · 247 F.2d 306 URL: https://www.frixlaw.com/law-library/cases/9445771 ## Case - **Full name:** The CENTRAL WEST UTILITY COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent - **Court:** Court of Appeals for the Third Circuit - **Decided:** August 6, 1957 - **Citations:** 247 F.2d 306; 7 Oil & Gas Rep. 1331; 1957 U.S. App. LEXIS 3700 - **Precedential status:** Published - **Opinion:** Dissent by McLAUGHLIN - **Judges:** Maris, McLaughlin, Kalodner - **Cited by:** 5 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/9445771 ## Opinion text McLAUGHLIN, Circuit Judge (dissenting) . This proceeding is not controlled by our decision in 204 F.2d 675 . There we held that the action of the Commission under Section 5(a) of the Act was prohibited by Section 7(a) which withholds from the Commission the power to compel enlargement of a natural-gas company’s transportation facilities when to do so would impair its ability to render adequate service to its customers. The presently disputed order is directly subject to Section 7(e) of the Act. Under that Section the Commission can only issue a certificate of public convenience “ * * * if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the Act and the requirements, rules, and regulations of the Commission there *314 under, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.” By 7(e) if applicant Panhandle Eastern is in violation of the Act in connection with the very subject matter of its application it cannot be granted the sought for certificate. And Panhandle is in direct violation of Section 4(b) of the Act 1 by its unlawful discrimination against Central West. That discrimination as found by the Commission in its opinion 218, 10 F.P.C. 361, was not disputed by Panhandle on review of the opinion in this court in the 204 F.2d 675 case above mentioned. It is independently established here by the Presiding Examiner’s findings holding specifically, as they do, that Panhandle has been and was granting undue preference to the customers of the favored ten laterals in its enlargement program to the detriment of the Liberty Lateral customers which action amounted to unlawful discrimination prohibited by Section 4(b). Section 7(e) came into the Act as an amendment more than three and a half years after Sections 5(a) and 7(a). It carefully strengthened the hand of the Commission in dealing with the issuance of certificates of convenience and necessity. There is not the slightest indication that Congress gave this additional power to the Commission for the strange purpose of emasculating it by reading 7(a) against it and so forcing the practical abandonment of the amendment. The new section calls for no diluting interpretation. If Section 7(a) should be repugnant to it, 7(e) would control. In that latter section we are dealing with a clear mandate of Congress. Non-compliance with it is not excused by our opinion in 204 F.2d which never even considered it. In the earlier decision involving the same basic charge of prohibited discrimination lodged by Central West against Panhandle this court declared that, assuming such discrimination, the Commission was without power under Section 7(a) of the Natural Gas Act to order, in effect, enlargement of the Liberty Lateral for the purpose of abating such discrimination. In this case the court declares that the Commission is without authority under Section 7(e) of the Act to deny a certificate of necessity and convenience where the identical discrimination by Panhandle exists. The result of the two decisions together is to deprive the Commission of all power to prevent or abate the “undue preference or advantage to-any person * * * [or the maintenance of] any unreasonable difference in service [or] facilities.” The collateral suggestion that Panhandle’s application be allowed provided it eliminated the discrimination against the Liberty Lateral users is not the real issue in this Docket G-2433. The relief sought by Central West as prayed for in its petition to intervene was that Panhandle’s application for a certificate be denied. Under the Act it is entitled to that relief. The discrimination in violation of Section 4(b) has been found to exist. The Commission is, therefore, bound by 7(e) to deny the application. . Section 4(b) of the Act reads: “No natnral-gas company shall, with respect to any transportation or sale of natural gas subject to the jurisdiction of the Commission, (1) make or grant any undue preference or advantage to any person or subject any person to any undue prejudice or disadvantage, or (2) maintain any unreasonable difference in rates, charges, service, facilities, or in any other respect, either as between localities or as between classes of service.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445771. Public record. Not legal advice.