Full opinion text
OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER IN PROCEEDINGS FOR PRELIMINARY AND PERMANENT INJUNCTIONS CARTER, District Judge. I. INTRODUCTION This is an action seeking declaratory and injunctive relief, pursuant to 47 U.S.C.A. § 401(b) (1962) of the Communications Act of 1934 (the “Act”), see 47 U.S.C.A. § 609 (Supp.1983), to achieve enforcement of a certain order of the Federal Communications Commission. Plaintiff initially sought a temporary restraining order against the Defendant which was denied by Judge Cyr of this Court on June 15, 1983. A hearing was held on August 15, 1983, on the Plaintiff's claims for a preliminary and permanent injunction, which are consolidated for decision by consent of the parties. The Court has subject-matter jurisdiction under 28 U.S.C.A. § 1337 (Supp.1983). The Plaintiff was represented at the hearing by Robert A. Lewis, Esq., Ralph I. Lancaster, Esq., and Everett P. Ingalls, Esq. The Defendants, the Maine Public Utilities Commission and the individual Commissioners as defendants, were represented by Charles F. Dingman, Esq., Joseph G. Donahue, Esq., and William E. Furber, Esq. of the legal staff of the Maine Public Utilities Commission. The Federal Communications Commission (hereinafter FCC), participated as amicus curiae via a written submission. The Public Service Board of Vermont and the Attorney General of the Commonwealth of Massachusetts also participated as amici by briefs questioning the jurisdiction of this Court and urging dismissal of the case. The Court also granted a motion filed by the State of Rhode Island seeking leave to participate as amicus in the case. As of the date of this opinion and order the Court has received no brief from the State of Rhode Island. The Court, having reviewed the record and the written submissions of counsel in this matter, finds the facts, states its conclusions of law and orders as follows. II. FINDINGS OF FACT The Defendant, Public Utilities Commission of Maine (“MPUC”), is authorized by the laws of the State of Maine to regulate the intrastate charges, services, facilities and practices of the Plaintiff, New England Telephone and Telegraph Company (“NET”), to the extent that Plaintiff is engaged in the business of providing telephone utility service to the public within the State of Maine. The Defendants, Peter A. Bradford, Cheryl Harrington and Ralph H. Gelder, are the three Commissioners of the Defendant, MPUC. On July 27, 1982, NET filed with the MPUC tariff revisions as a result of which it sought an increase of approximately $49.8 million in its annual revenues. NET based its request for a rate increase in part on the FCC’s adoption of the Remaining Life Depreciation Method (“RLDM”). The FCC. had allowed that method for capital recapture in a rule making proceeding by its Order No. 20188, of December 5, 1980, 83 F.C.C.2d 267 (1980); reconsidered 87 F.C.C.2d 916 (1981). In a second rule making proceeding on the petition of the National Association of Regulatory Utility Commissions (“NARUC”), the FCC determined that Order No. 20188 did not preempt state regulatory agencies from prescribing depreciation rates and methods inconsistent with RLDM. Amendment of Part 31, Uniform System of Accounts for Class A and Class B Telephone Companies, No. 79-105 (April 27, 1982). Prior to the issuance of the MPUC order, however, the FCC held proceedings which resulted in its Order No. 82-542 (hereinafter cited as “Prescription Order”) prescribing depreciation methods to be utilized in rate making proceedings before the FCC involving telephone operating companies. In response to an FCC Order of Public Notice, the MPUC filed comments opposing the adoption of RLDM and rates for telephone utilities. The so-called Prescription Order was released on December 14, 1982, and since no appeal was filed, it has become final. On January 6, 1988, in separate proceedings on the consolidated petitions of American Telephone & Telegraph Co. (“AT & T”) and GTE Service Corp. on behalf of themselves and of associated Bell System operating companies, the FCC again considered the preemption issue. The resultant “Memorandum Opinion and Order,” in Amendment of Part 31, Uniform System of Accounts for Class A and Class B Telephone Companies, No. 79-105 (Jan. 6,1983), (hereinafter cited as “Preemption Order”) held that RLDM, as set forth in the prior FCC Order of December 14, 1982, preempted all inconsistent methodologies for treatment of depreciation allowances promulgated by state regulatory agencies in the setting of intrastate telephone rates. The Preemption Order is directed to all state regulatory agencies, is entitled an Order, grants the petition for declaratory ruling, and orders that “this order” be published in the Federal Register and be “served on” each state regulatory commission. Preemption Order at 1 and 17. The Preemption Order was published in the Federal Register on January 19, 1983. The Defendant, MPUC, admits that it received a copy of the Order from the FCC and had general knowledge of it. Defendant’s Responses to Plaintiff’s First Request for Admission of Facts, Response No. 23. The MPUC also admits that the Preemption Order is currently the subject of appellate review; that various states and NARUC have sought and received permission to intervene in the appellate proceedings and that the MPUC did not file a petition to intervene in the appellate proceedings. After making some inquiries, the MPUC determined “that no purpose would be served by such intervention,” id., Response No. 30, and has not filed a motion to appear as amicus curiae in the proceedings on that appeal. Id., Response No. 31. On April 26, 1983, the MPUC issued its Decision and Order in New England Telephone & Telegraph Co., Re: Proposed Increase in Rates, No. 82-124 (April 26, 1983) (hereinafter cited as the “MPUC order”). The MPUC never undertook to challenge the Preemption Order either through direct-party status before the FCC or by participating in the appellate review of that Order in the Court of Appeals for the Fourth Circuit. Yet, in the rate-making proceedings involving NET, the MPUC declined to apply the RLDM prescribed by the FCC in its determination of NET’s intrastate rates. Rather, the MPUC based its determination of NET’s rates upon the WLDM, which is different from RLDM. MPUC Order at 37-39; Defendant’s Responses to Plaintiff’s First Request for Admission of Facts, No. 32, at 12. In considering NET’s contention, the MPUC undertook a full review of the substantive propriety of the FCC’s conclusions reached in both the Prescription Order and the Preemption Order. See MPUC Order at 30-40. As a result of analysis of issues already analyzed and decided by the FCC, the MPUC reached its own decision. It stated: We conclude therefore that the FCC erred both in its conclusions of blanket preemption and preemption under federal supremacy, and therefore we do not consider the Maine Commission bound by the FCC’s January preemption Order in setting depreciation rates for NET. We note also, as the FCC has, that depreciation and capital recovery are overlapping concepts. To the extent that depreciation is more rapid, capital recovery is quicker and more certain. Thus, the risks to investors are reduced. Our return on equity allowance in this case assumes that our depreciation practices are controlling. If different depreciation rates are used, our estimate of the risk to investors would vary as well. Consequently no change can be made to depreciation without a reappraisal of the allowed return on equity as well. Id. at 36 (emphasis in original). The MPUC indicated its disagreement with the FCC position as set out in the Prescription and Preemption Orders by stating: We are aware that three state commissions have been enjoined preliminarily from disregarding the FCC Order. While we will oppose any effort to obtain a similar injunction, we note that Maine law does not permit the Commission to resolve this matter by allowing rates under bond. Consequently, the course we are pursuing is the only way that we can protect Maine consumers from prolonged depreciation overcharges in the event that litigation against the FCC is ultimately successful. Id. The MPUC’s opinion did not consider methods to protect the utility’s interests in the event that the litigation against the FCC would prove ultimately unsuccessful. In discussing NET’s contention that RLDM should be employed, the Commission referred to its decision in Continental Telephone Co. of Maine, No. 81-61 (Dec. 23, 1981), in which it had expressed various reservations about the propriety of applying remaining life depreciation rates to Maine utilities. The Commission also found NET’s analysis lacking in many respects: [T]he core of NET’s position appears to be that competition and technological advance have shortened service lives, and that as a result we should accept depreciation rates prescribed by the FCC to reflect this fact. The skeletal presentation, even though, as pointed out by NET in its reply brief, accompanied by expensive workpapers, does not address all relevant concerns. MPUC Order at 38. The Commission noted that NET’s only support for its position was a “bare calculation” made in rebuttal testimony as to the depreciation “that would be accrued using the whole life rates compared to the amounts that would be accrued as using remaining life rates.” Id. at 88. The Commission found that this type of analysis was “circular and does not really prove anything.” Id. The Commission disagreed with NET’s assertion that it was generally known that service lives were in a period of shortening. The Commission appeared to adopt the Public Advocate’s contention that even if service lives are shortening in locations other than Maine, that shortening may not be occurring within Maine because of a tendency to repair equipment that would be replaced in other jurisdictions. The Commission also noted that “[a] major further infirmity in the FCC position is that it bears no relation to depreciation as it actually occurs. Equipment does not depreciate uniformly across the country in either an economic or an engineering sense.” Id. at 39. Finally, in respect to NET the Commission noted an additional factor militating against its adoption of Real Life Depreciation methods and rates: An additional consideration is the planned transfer of assets at net book value to AT & T on January 1,1984. On such sale, NET will receive full capital recovery for assets transferred. Higher depreciation rates now would only result in a lower sale price for those assets. The exact effect of the sale on the proposed depreciation rates is not clear. NET states that $264,000 of the $1,707,-000 in increased intrastate depreciation expense due to the implementation of remaining life rates is attributable to terminal equipment accounts, which it claims would constitute the bulk oí the assets to be transferred .. . However, as staff witness Selwyn points out, all depreciation accounts will be affected and the assets to be transferred comprise a substantial portion of NET’s assets. Id. at 39 (citations to evidentiary sources omitted; emphasis in original). Thus, the Commission undertook its own substantive evaluation of the propriety of application of RLDM as opposed to WLDM. This evaluation was independent of and at variance with the evaluation and determination of that issue (and related issues) previously conducted by the FCC in both the Prescription and Preemption Orders. NET has sought review of the MPUC Order before the Maine Supreme Judicial Court sitting as the Law Court in New England Telephone & Telegraph Co. v. Public Utilities Commission, No. KEN-83-1907, pursuant to 35 M.R.S.A. § 303 (1978). Plaintiff’s Answers to Defendant’s First Request for Admission of Facts, Response No. 9. Maine law specifically provides that during the pendency of such an appeal: no injunction shall issue suspending or staying any order of the commission and said appeal shall not excuse any person or corporation from complying with and obeying the order or decision or any requirement of any order or decision of the commission or operate in any manner to stay or postpone the enforcement thereof, except in such cases and upon such terms as the commission may order and direct. 35 M.R.S.A. § 304 (1978) (emphasis added). The quoted statutory restriction upon the Law Court’s appellate jurisdiction appears to excise from its authority, in appeals from orders of the Public Utilities Commission, the more general equitable appellate jurisdiction with respect to stays and injunctions granted to the Law Court by 4 M.R.S.A. § 57 (Supp.1982-1983). In its pending appeal to the Law Court, NET has not sought to raise for review any question as to the legality or propriety of MPUC’s election to treat depreciation expense accrual on the basis of WLDM. NET presents that issue exclusively to this Court by the Complaint herein. This Court finds that the rates established by the MPUC’s Order of April 26, 1983, continue to prescribe utilization by NET of depreciation methods other than those prescribed by the FCC in the Preemption and Prescription Orders. The Commission has continued to retain the WLDM and rate structure for the determination of depreciation allowances and the recovery of depreciation in the form of expense accruals. The MPUC Order proscribes the adoption by NET of the FCC-mandated method of Real Life Depreciation and corresponding rates. The MPUC Order clearly expresses the intent of the Commission to reach a conclusion markedly at variance with the one reached by the FCC in the Prescription and Preemption Orders. The use of WLDM and rates is inconsistent with the FCC-mandated RLDM and rates. Under the MPUC depreciation method, when an asset is acquired, a fixed life is assigned to it and the costs of depreciation are allocated over the assigned period regardless of the actual life of the asset. Recovery of those costs occurs at a slow rate at the beginning of the life of the asset. On the other hand, the RLDM technique now prescribed by the FCC as a result of the Prescription and Preemption Orders evaluates the remaining life of assets at periodic temporal intervals, and the remaining value of an asset is depreciated over its remaining life, regardless of the length of the originally assigned service life of those assets. The RLDM is conceded to result in greater recovery of asset costs early in the life of the asset. The MPUC order makes it plain that the actual expenses of the Plaintiff, including costs associated with depreciation of assets, are among those factors evaluated by the MPUC in determining what rates NET will be allowed to charge. It is clear that if depreciation of NET’s assets is computed according to the FCC-mandated method rather than according to the WLDM employed by the MPUC, NET’s expenses will be substantially increased with resultant increases in revenues. The Court finds that the use of the FCC-mandated accounting procedures and depreciation methodologies would result in accelerated depreciation and currently greater expense accruals for depreciation which may require a related increase in rates in future MPUC rate proceedings. A significant objective of depreciation accounting is to assure the integrity of a utility’s capital investment in the plant and equipment by which it provides its public service. It attempts to do this by assuring that capital invested in the business is fully recovered over the useful life of the depreciable asset through charges to expense. In the WLDM the calculated depreciation rate is based on the average whole life of a complex of assets. Allowances of expense for depreciation are calculated by applying the depreciation rate to the investment in assets. Certain circumstances, such as the introduction of new technology, the pressure of competition, or unanticipated wear and tear on assets during normal use, cause a change in the estimated service life of the asset complex. Such circumstances create a need for adjustment in asset life if full recovery of capital investment in assets is to be recouped through depreciation. WLDM, however, does not permit such adjustments for subsequent changes in asset life. As a result that method generates either under-accruals or over-accruals of depreciation. The RLDM provides for the making of such periodic reevaluations of asset life for purposes of calculating depreciation. That method takes into account the portion of the original investment that has been recovered through application of past depreciation rates and deducts that amount from the asset investment. RLDM is then calculated so that the unrecovered net investment remaining in the asset complex is charged to depreciation expense over the average remaining life of the asset complex. The RLDM has built into it a corrective technique for minimizing either under-accruals or over-accruals of depreciation, thus affording greater protection to the integrity of the invested capital by adjusting depreciation recoveries as expense accruals to take into account changes in asset life. The MPUC’s methodology for setting the currently effective rates of NET takes into account a calculation of the actual expenses of NET in accordance with standard regulatory accounting procedures. These expenses, including costs associated with depreciation of assets are a factor considered by MPUC in determining the rates to be set for NET’s service. The effect of MPUC’s use of WLDM and rates rather than the FCC-mandated RLDM and rates in calculating NET’s intrastate rates is to reduce NET’s accrual of depreciation as business expense on an annual basis by approximately $1,667,000. This reduction of depreciation expense through reduction of annual accruals of depreciation as expense results in NET being deprived of approximately $800,000 per year of internally-generated cash which would result from the application of the RLDM as mandated by the FCC. The principal effect, however, is to also prevent NET from recovering those amounts of depreciation attributable to shortenings of asset life for which no adjustment is made on a periodic basis under WLDM. The application of RLDM as opposed to WLDM over the remaining life of currently existing NET capital plant and equipment by the MPUC in setting NET’s rates for service will ultimately deprive NET of approximately $20 million of capital asset value recapture through annual accruals of depreciation as expense. This is so because NET’s depreciation expense by RLDM is substantially greater on an annualized basis than the depreciation expense when computed using WLDM. In order to replace the lost cash flow benefit of the increased depreciation expense that would be realized by NET, were it permitted to use RLDM, NET is required to generate additional annual revenues of $1,667,000 based on the test year used in the MPUC Order or to obtain approximately $800,000 of additional capital from external financial sources for which it must pay the costs associated with production of capital in that amount. NET is not compensated at its current rates as established by the MPUC for the additional costs associated with obtaining that additional capital. The Court finds that as a result of the foregoing considerations, NET is currently suffering a direct economic injury as a consequence of MPUC’s utilization of WLDM as opposed to the FCC-prescribed RLDM. Subsequent to the entry of the MPUC Order, the FCC denied a stay of its Preemption Order which was sought by a motion of the New York Public Service Commission and the National Association of Regulatory Utility Commissioners. Amendment of Part 31, Uniform System of Accounts for Class A and Class B Telephone Companies, No. 79-105, (July 22, 1983) (hereinafter cited as Amendment to Part 31). The FCC concluded that the grant of a stay would interfere with its competitive policies. Additional findings of fact are stated, as pertinent, in the course of the Court’s discussion of its conclusions of law, infra. III. CONCLUSIONS OF LAW The evidence and contentions of the parties in this case generate the following issues: 1. Whether, on the facts of this case, the Johnson Act, 28 U.S.C.A. § 1342 (1976), bars this Court from entering an injunction against the MPUC. 2. Whether FCC Preemption Order is enforceable under § 401(b): (a) Whether the MPUC is a “person” within the meaning of that term as used in § 401(b); (b) Whether the FCC intended the Preemption Order to be binding on all state regulatory bodies; (c) Whether the FCC Preemption Order is “regularly made” and “duly served” within the meaning of § 401(b); (d) Whether § 401(b) permits enforcement only against “persons” who are formal parties to the FCC proceedings resulting in such orders; (e) Whether NET has demonstrated that it is sustaining harm as a result of the MPUC’s continuing non-compliance with the Preemption Order. 1. The Johnson Act The Johnson Act, 28 U.S.C.A. § 1342 (1976) provides as follows: § 1342. Rate orders of State agencies The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where: (1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution; and, (2) The order does not interfere with interstate commerce; and, (3) The order has been made after reasonable notice and hearing; and, (4) A plain, speedy and efficient remedy may be had in the courts of such State. The Congress enacted § 1342 to restrict the ambit of the power of the federal courts to enter injunctions against the orders of state regulatory commissions setting rates for the charges of public utilities. Shrader v. Horten, 471 F.Supp. 1236 (W.D.Va.1979), aff’d, 626 F.2d 1163 (4th Cir.1980). One purpose of the Act was to remove constitutional challenges to such orders from the federal courts, Bridgeport Hydraulic Co. v. Council on Water Co. Lands, 453 F.Supp. 942 (D.Conn.1977), aff’d, 439 U.S. 999, 99 S.Ct. 606, 58 L.Ed.2d 674 (1978), and to channel routine rate litigation into the state courts. Shrader v. Horten, 471 F.Supp. 1236. The evil addressed by this statute was that of the federal court’s interference with the state’s control of its own function of regulating public utility rates. Tennyson v. Gas Service Co., 506 F.2d 1135 (10th Cir.1974). The statute’s proscription of the exercise of federal jurisdiction to grant equitable remedial relief is intended to bar only those cases where claims to such relief are within the jurisdiction of the court solely because of concepts of diversity of citizenship or repugnance to the Federal Constitution. See International Brotherhood of Electrical Workers v. Public Service Commission, 614 F.2d 206 (9th Cir.1980). In short, the statute proscribes federal court action in rate controversies which would have been, in the normal course, tried in state courts but which could be brought in federal court on the basis of diversity or federal question jurisdiction. In the absence of § 1342, these jurisdictional bases would operate to shift jurisdiction of such causes from the state to the federal courts. Where the relief at issue is sought pursuant to another federal statute, however, the Johnson Act will not bar federal court jurisdiction. Id. In this case, the first requirement of the Johnson Act that must be satisfied in order to oust federal courts of jurisdiction in such cases cannot be met. NET invokes the jurisdiction of the court under 47 U.S.C. § 401(b) to obtain enforcement of an FCC Order. Section 401(b) of Title 47 United States Code provides as follows: (b) If any person fails or neglects to obey any order of the Commission other than for the payment of money, while the same is in effect, the Commission or any party injured thereby, or the United States, by its Attorney General, may apply to the appropriate district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly made and duly served, and that the person is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction or other proper process, mandatory or otherwise, to restrain such person or the officers, agents, or representatives of such person, from further disobedience of such order, or to enjoin upon it or them obedience to the same. The central focus of this case is upon enforcement of the FCC’s Prescription Order rather than upon the interference with the application of a state order affecting rates. This Court’s jurisdiction over the present action is therefore based specifically upon the particular grant of jurisdiction to the federal courts, set out in § 401(b), to “enforce obedience to such order by a writ of injunction or by other proper process, mandatory or otherwise,” when the other requirements of that subsection are satisfied. The use of the word “solely” in § 1342(1) permits the federal court to act where its jurisdiction is conferred independently of those jurisdictional bases enumerated in § 1342, e.g., where the court’s jurisdiction derives from a separate statutory grant of jurisdiction. The fact that an ancillary effect of the exercise of federal enforcement jurisdiction under § 401(b) may be an adverse impact upon the operation of “an order affecting rates” under § 1342 is not sufficient to invoke the bar of that provision. This is so because one of the specific conditions of the operation of that statute, namely, that jurisdiction be solely based upon diversity or constitutional repugnance, is not met. Therefore, the Johnson Act does not bar this court from entertaining this action. Chesapeake & Potomac Telephone Co. v. Public Service Commission, 560 F.Supp. 844 (D.Md.1983). 2. Jurisdiction Under 47 U.S.C. § 401(b) (a) Whether the MPUC is a “Person” Under § 401(b) The contention is made that § 401(b) does not confer upon this court jurisdiction over this case because the MPUC is not “a person” within the meaning of that term as used in the statute. The contention is explicitly put forth by the Public Service Board of the State of Vermont in its amicus brief and in the brief of the MPUC. The argument is succinctly stated in the Vermont amicus brief as follows: The statute provides for enforcement of FCC Orders against “persons” in “disobedience” thereof. In the first place, it is still another affront to logic to hold that anyone can be in disobedience of an order which does not—as the Second Preemption Order does not—command obedience but which merely declares an opinion. Secondly, a state commission is not a “person” within the meaning of § 401(b). The Communications Act contains an explicit definition of the word, person, and that definition clearly does not include a state or a state agency. 47 U.S.C. Sec. 153i. [sic]. It includes only “an individual, partnership, association, joint-stock company, trust or corporation.” Apart from the plain language of this provision, the legislature’s intent to exclude state commissions from the definition of persons is made unmistakably clear by the fact that the statute contains a separate definition of state commissions. 47 U.S.C. Sec. 153t. Brief of Public Service Board of State of Vermont as amicus curiae at 11. A close reading of Section 153(i) and (t) of the Act reveals that the argument overstates the rigor of the definitional structure of the Act. Section 153 states generally that “for purposes of this chapter, unless the context otherwise requires ” the following definitions apply. 47 U.S.C.A. § 153 (1962) (emphasis added). The stressed phrase makes it clear that the definitions set out in § 153 are not intended to be exclusive, exhaustive or comprehensive. Rather, they are “guideline” definitions whose scope and meaning are, as a general principle, to be varied as the context in which they are used in the Act may require in order to effectuate the congressional intent with which they are used. This view of the intended definitional flexibility contemplated by § 153 is confirmed by the language used to define statutory terms pertinent to the present issue, namely, “person” and “state commission.” Section 153(i) states that “ ‘person’ includes an individual, partnership, association, joint-stock company, trust or corporation” (emphasis added). The use of the term “includes” in the definition belies any congressional intent that the specifically enumerated entities are meant to reflect the exclusive content of the defined noun. To the contrary, the use of that verb clearly implies that other legal entities in addition to those enumerated in the definition may be within the scope of the term “person.” Further, the absence of any mandatory language in any of the definitions set out in § 153 cuts strongly against any assumption of legislative purpose to rigidly prescribe the exclusive content of the terms defined or to proscribe the application of the term “person” to other legal entities when, as the initiating proviso states “the context otherwise requires.” Further, § 153(t) states that “ ‘[s]tate commission’ means the commission, board, or official ... which under the laws of any state has regulatory jurisdiction with respect to intrastate operation of carriers.” 47 U.S.C.A. § 153(t). That language is clearly intended to articulate the identity of entities or persons who shall, for purposes of the Act, be considered to be a “state commission” within the intendment of the Act. It is a definition of inclusion rather than one of exclusion. It does not follow, especially in view of § 153’s stated intent that definitions shall reflect contextual propriety, that inclusion of certain entities within the scope of “state commission” requires exclusion of a state commission from the meaning of “person” as set out in § 153(i). Clearly, where the context of the use of the word “person” requires that a state commission be considered a person, the section contemplates that that term has sufficient scope to embrace a state commission. It is the obvious purpose of § 401 of the Act to provide procedural mechanisms for the enforcement of the provisions of the Act and of valid orders of the FCC as against those persons legally subject to them and the requirements they impose. Subsection 401(a) provides for district court jurisdiction to enforce, on application of the Attorney General, the provisions of Chapter 5 of the Act against “any person” who is in violation of the provisions of that chapter. Subsection 401(b) addresses generally the enforcement of “any order" of the FCC by providing for district court jurisdiction. It also authorizes the exercise of the district court’s jurisdiction as against “any person.” Finally, subsection 401(c) places upon the U.S. Attorney, on request of the FCC, the duty to institute and prosecute proceedings necessary “for the enforcement of the provisions of this chapter and for the punishment of all violations thereof.” 47 U.S.C.A. § 401(c) (Supp.1983) (emphasis added). The statute may thus be seen to be intended to provide jurisdiction in the federal courts sufficient generally to enforce the. provisions of statutory law and the requirements of FCC orders made pursuant to them. It intends enforcement to occur against “all persons” who are in violation of those provisions of law and the requirements of FCC orders. So general a concept of enforcement cannot logically admit of an exception based upon narrow and technical distinctions of status as to particular types of legal entities. The enforcement purpose of the Act cannot be realized with its intended generality unless “all persons,” in that phrase’s broadest ambit, found to be bound by the Act or order are subject to enforcement as prescribed by § 401(b). If any person or entity who is subject to and, therefore, obliged to obey the provisions of the law or the requirements of an FCC Order fails or refuses to do so, it is intended that the means to compel that person’s obedience and compliance shall be available via the Act in the federal district court. Congress clearly intended that FCC Orders be enforced so long as they remain in effect. Chesapeake and Potomac Telephone Co. v. Public Service Commission, 560 F.Supp. 844 at 846, quoting from Pacific Northwest Bell Telephone Co. v. Washington Utilities and Transportation Commission, 565 F.Supp. 17, 20-21 (W.D.Wash.1983). That being so, there is no basis to exclude from the definition of “any person” any entity that is legitimately subject to the compulsions imposed by the Act or FCC orders made pursuant to it. This is especially true of state regulatory bodies, Chesapeake, 560 F.Supp. at 847, which may be regularly expected to be subject to a greater incidence of required compliance with the Act and FCC orders than would most other categories of persons and entities except, possibly, regulated utilities. It may be that in a particular case there is severe question as to whether a state regulatory body is in fact subject to an FCC order for any number of reasons or whether that order may be properly enforced against a state regulatory authority. There can be no doubt, however, that on a showing that such an entity is properly subject to the Act and FCC orders, Congress intended Section 401(b) to provide a jurisdictional basis in federal district courts for appropriate enforcement of the Act and FCC orders against that body, the other requirements of the subsection being met. That being so, this forum is available for a determination of the issue of whether or not the Act is enforceable against the regulatory authority in the face of any reasons that may be raised in defense of the proposition that the order is not so enforceable. Any effort to limit those entities subject to the jurisdiction of the District Court on the basis of entity type or status is analytically unacceptable as a premature and sub rosa decision of a separate and distinct inquiry; namely, whether or not the “person” before the Court is bound by the FCC order. Congress could hardly have intended to allow a state commission to refuse the opportunity to seek review of a FCC Order and then to claim immunity from enforcement of the order on the grounds that it was not a “person” within the meaning of the enforcement section of the statute. Pacific Northwest Bell, 565 F.Supp. at 21. (b) FCC Intent that the Preemption Order be Binding on All State Regulatory Bodies In this case this Court originally denied a Motion for a Temporary Restraining Order. New England Telephone & Telegraph Co. v. Public Utilities Commission, Civ. No. 83-0166P, slip op. at 7-16 (D.Me., June 15, 1983) (per Cyr, J.). Based upon the evidence presented to this Court on that motion, this Court found that the FCC’s Order was intended to be preemptive of state orders but that the MPUC’s “disobedience” of the Order did not subject it to enforcement under § 401(b). In recognition of this Court’s findings, the District Court for the Middle District of Louisiana, in reconsidering its prior decision on the point, framed the issue of the preemptive intent of the FCC. It said, “the narrow issue then is whether this particular F.C.C. Order [the Preemption Order], by its terms, requires that all state regulatory bodies comply and adopt the F.C.C. accounting procedures.” South Central Bell Telephone Co. v. Louisiana Public Service Commission, No. 83-557-A, slip op. at 6 (D.La., August 1, 1983) (emphasis added). Quoting portions of the language of ¶43 of the FCC’s Preemption Order, the Louisiana Court concluded that the language could only be construed “as a direct order for the guidance of state commissions, specifically declaring that inconsistent state prescribed depreciation rates are void.” South Central Bell Telephone Co., No. 83-557—A at 7. There can, therefore, be no question at this juncture that the FCC intended its Preemption Order to be enforceable against all state regulatory bodies. The Court went on to note that: [T]he order nevertheless is plainly directed to all state regulatory bodies and plainly declares that their depreciation procedures must comply with F.C.C. procedures. It is thus an “order of the Commission other than for the payment of money” and may be enforced under § 401(b) against any person who “fails or neglects to obey” by any party injured thereby. Id. This Court finds the above construction of the language of the Preemption Order in question persuasive as to the intent of the Commission in issuing the order. Any doubt as to the propriety of that construction is conclusively removed in this Court’s opinion by action taken by the FCC since the time of writing of both Courts. In Amendment of Part 31, discussed above at 12, the FCC denied a request for a stay of the Preemption Order as to state regulatory bodies, some of which were not formally before the Commission in the proceedings resulting in the Preemption Order. First of all, the fact that the FCC decided to deny to a nonparty state regulatory body a stay of the Preemption Order clearly displays the accuracy of the Louisiana District Court’s determination of the FCC’s intent in issuing the Preemption Order; namely, that it should apply to all state regulatory bodies whether or not they were formally involved in the proceedings before the Commission which resulted in the issuance of the Preemption Order. The implication which results from the denial of a stay in those proceedings cannot be otherwise than that the FCC’s original intent was that all state regulatory bodies be bound by the Preemption Order. Furthermore, the language of the Opinion and Order denying the stay explicitly rejected the argument that a stay should be granted “because customers will suffer irreparable injury if increased rates resulting from the increased depreciation expenses are permitted to be included in the revenue requirements formula” currently being utilized by telephone utilities. Amendment of Part 31, ¶ 6, at 3. The FCC specifically noted that the rate payers’ interest in this regard could be adequately protected by the state commissions’ allowance of rate increases based upon the FCC-mandated depreciation method subject to a proper accounting order and refund procedure requiring that the additional revenues generated from rates based upon accelerated depreciation be refunded to customers in the event that the Preemption Order should be overturned on appeal. The FCC removed any doubt as to its intention that all state regulatory bodies should be bound by the Preemption Order on a current basis when it stated: The grant of a stay would interfere with our competitive policies. If a stay were to be granted, the capital recovery we found essential to the development of an efficiently functioning competitive marketplace would be halted. Moreover, there is no w.ay that the carriers can retroactively recover the lost opportunity to recover the capital that would have been recovered in the absence of a stay if our decision is upheld on appeal. .. [I]f a competitive marketplace is to be achieved in the interstate jurisdiction, it is essentia] that the exchanges keep up to date with new technology in order to insure that customers will be able to avail themselves of the benefits of the evolving competitive offerings. Id., ¶¶ 7-8 at 4. This articulation of the FCC’s position is noteworthy in that it specifically expresses the FCC’s intent as it is to be implied from its action in denying the stay; the original Preemption Order is intended to remain currently effective and binding upon all state regulatory bodies. It is of further significance in that it displays action by the FCC specifically rejecting one of the contentions urged in this case as a basis for denying enforcement of the Preemption Order under § 401(b); that is, that rate payers of telephone utilities will suffer irreparable injury if the FCC-mandated depreciation methodology is adopted. Finally, the FCC’s articulation is significant in that it specifically adopts as a viable basis for denying the requested stay the proposition put forth by the Plaintiff in the present proceedings as a basis for obtaining enforcement of the Preemption Order under § 401(b); namely, that if the Preemption Order is not given current effect pending the determination of its legality on appeal by the Fourth Circuit Court of Appeals, the telephone utilities will lose irretrievably the “opportunity to recover the capital that would have been recovered in the absence of a stay if our decision is upheld on appeal.” Id. Accordingly, this Court concludes that there is no room to doubt that the FCC intended the Preemption Order to operate on all state regulatory bodies and to have the effect of preempting utilization by those bodies, in the regulation of intrastate rates, of any depreciation methodology at variance with that prescribed by the Prescription Order and that, in the words of the Preemption Order itself, such alternate methods and rates are void. Preemption Order, ¶ 43, at 16. The rulings and orders of administrative agencies carry the full force of federal law and are accorded the same preemptive effect as federal statutes. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). It remains to be considered whether the FCC’s- intent in this respect could legally be carried into effect under Section 401(b). (c) Whether the FCC Preemption Order is “Regularly Made and Duly Served” Within the Meaning of § 401(b) Section 401(b) of the Communications Act requires, inter alia, as a precondition to court enforcement of an FCC order that the court determine the order to be “regularly made and duly served.” The Preemption Order meets this standard. The history of the FCC’s consideration of the matter of appropriate depreciation methods and rates has been detailed in Part II of this Opinion, the Findings of Fact. See text, supra, at 3-4,12. All the proceedings discussed were preceded by proper Public Notice as required by 47 C.F.R. § 1.403. Although the record before the Court does not indicate that the MPUC participated in the first proceedings which resulted in orders allowing the RLDM and deciding that that method did not preempt state prescribed methods, MPUC does not contend that the orders made in the course of those proceedings were other than regularly made, and the FCC appears to have followed the usual rule making requirements set forth in 47 C.F.R. §§ 1.399-1.429. Similarly, the Court is satisfied that the proceedings culminating in the issuance of the Preemption Order were properly treated by the FCC as rule making proceedings under 47 C.F.R. §§ 1.399-1.429. MPUC participated in the proceedings culminating in the Prescription Order but did not participate in those proceedings resulting in the Preemption Order by either seeking direct party status or joining the challenge to that Order on appeal. The court has had no instance pointed out to it, and can find none on its own independent study, with respect to which it can be asserted that the proceedings were not conducted by the FCC in accordance with the applicable rules. The Preemption Order emanating from those proceedings must be considered therefore, as “regularly made” within the intendment of § 401(b). finally, MPUC concedes that it was served with the Preemption Order and had knowledge of its content. While not asserting any procedural irregularity in the making of the Preemption Order, MPUC does contend that it cannot be considered to be within the purview of a § 401(b) Order because it is not made in an “adjudicative” context in which the MPUC was a party. This contention does not address the issue of whether the Preemption Order was “regularly made” but goes, rather, to the question of whether it is the type of order contemplated by § 401(b) as ripe for enforcement under that statute. (d) Whether § 401(b) Permits Enforcement of an FCC Order Only Against “a Person” Who is a Formal Party to the FCC Proceedings Resulting in Such Order? This issue resolves itself into one of statutory construction. The key determination to be made is that of the meaning and scope of the word “order” as used in § 401(b). The position of the MPUC on this issue is based wholly upon its contention that § 401(b) does not contemplate enforcement of any “order” of the FCC except against parties who participate in the FCC proceedings from which the order to be enforced (here, the Preemption Order), results. The MPUC’s core contention on this issue is set forth in its brief as; “... the view that ‘order’ as used in § 401(b) must mean an order in an adjudicatory proceeding, specifically mandating or prohibiting an act by a party to that proceeding. In other words, ‘order’ must be understood in the same sense that it is used in 5 U.S.C. § 551(6).” MPUC brief, at 4. NET, on the other hand, contends that the definitional elements of the term “order” as it is used in § 401(b) are set out in the specific language of that section. These, elements, it contends, are (1) that the agency action be an order of the agency; (2) that the order be “regularly made”, (3) that the order be “duly served”; and (4) that it be “other than for the payment of money.” NET’s position, in essence, is that if the agency action sought to be enforced meets these criteria, specifically set out in § 401(b), that action is of the kind contemplated by the statute and is to be treated for § 401(b) purposes as an “order” contemplated by the statute. NET specifically asserts that there is no requirement that it be shown, to achieve enforcement of an agency action under § 401(b), that the defendant in the enforcement action was a formal party to the action before the administrative agency. All that is required to be shown is that the agency “regularly made” the order and that it was “duly served.” NET brief, at 6-7. This issue has been examined, with specific reference to this Preemption Order, on two occasions; the first was this Court’s “Order Denying Motion for Temporary Restraining Order” (per Cyr, J.) and the second was the “Order Amending Order for Preliminary Injunction” entered in the South Central Bell case. This court’s discussion of the issue was in the context of determining NET’s “likelihood of success on the merits” for purposes of deciding if a temporary restraining order should issue under F.R.Civ.P. 65(b). The Court found the Preemption Order to be “a clear declaration of the FCC’s position that federal law preempts all state depreciation rates which are inconsistent with the rules prescribed by the FCC.” New England Telephone & Telegraph Co. v. Public Utilities Comm’n. slip op. at 7. Nevertheless, the Court concluded that the MPUC’s “refusal to comply” with the Preemption Order did not constitute “disobedience of an order within the meaning of Section 401(b).” Id. at 8. That analysis did not dissuade the South Central Bell court, in its reconsideration of the issue, from the propriety of its prior course in granting the injunctive relief there sought. The court observed that, “[n]o one disputes that this is a final order of the FCC—the issue is whether it may be enforced by a private party under § 401(b) against the Public Service Commission.” South Central Bell Telephone Co. v. Louisiana Public Service Commission, slip op. at 5. The court said the narrow issue was “whether this particular F.C.C. Order, by its terms, requires that all regulatory bodies comply and adopt the F.C.C. accounting procedures.” Id. at 6. After a review of the content of the terms of the Preemption Order with special emphasis on the content of paragraph 43, the court concluded that the order could only be seen “as a direct order for the guidance of state commissions, specifically declaring that inconsistent state prescribed depreciation rates are void.” Id. at 7. This Court agrees with the characterization of the Preemption Order set out by the court in South Central Bell. It is not necessary to decide here the more general question of whether rules and regulations promulgated by the FCC without any specific directory intent, would be enforceable under § 401(b). That is not the issue presented by this case. What is at issue here is whether this Preemption Order is of sufficiently directory effect to be within the enforcement policy intended to be implemented by § 401(b), as long as other requirements specifically imposed by that section are met. This Court is persuaded that the question must be answered in the affirmative. The Preemption Order is an FCC pronouncement undeniably intended by the FCC to bind all state regulatory agencies. The pronouncement itself is labeled as an “order.” The pronouncement explicitly states “that this Commission’s depreciation policies and rates ... preempt inconsistent state depreciation policies and rates.” Preemption Order, ¶ 45, at 17. In it the FCC “find[s] it imperative to declare today that inconsistent state prescribed depreciation rates are preempted by the Communications Act and are accordingly void.” Id., ¶ 43, at 16. Finally, in four ordering paragraphs the FCC directs that the Petition for Reconsideration be granted, that the Declaratory Ruling issue forthwith and that the order be published in the Federal Register and be served “on each state commission.” As has previously been demonstrated, there can be no doubt but that the FCC intended for all state agencies to be bound by and to comply with the Preemption Order. See text, supra, at 20-24. The very least that can be said of 47 U.S.C.A. § 401(b) is that Congress meant it to be available as a vehicle to enforce compliance with FCC Orders from those “persons” whom the FCC meant to be bound by them. Here, that is precisely what NET seeks. The factual allegations of the complaint supporting that claim assert only the history of the agency action, the MPUC’s failure to comply and the direct and immediate injury to NET which results from MPUC’s failure to comply. The complaint seeks no damages. Its claim for relief is based upon no wrong other than MPUC’s failure to comply with the Preemption Order. NET seeks no relief other than compliance with that Order. Finally, it seeks compliance from an entity whose compliance is plainly intended by the FCC. Thus, NET’s whole claim, as set out in the complaint rests upon the existence of § 401(b) as a means of exacting simple, direct and immediate compliance from those who are intended to be bound by a regularly made order of the FCC. Section 401(b) is meant to be a means to exact simple, direct compliance with an FCC order from an entity clearly meant by the FCC to be bound by it provided that the order was “regularly made” and “duly served.” The statute provides that “any party injured” by the failure or neglect of “any person” to obey “any order” of the FCC “other than for the payment of money” while the order “is in effect ... may apply to the appropriate district court of the United States for the enforcement of such order.” 47 U.S.C.A. § 401(b) (emphasis added). The statute goes on to provide that if the court finds the aforesaid circumstances to exist, “it shall enforce obedience to such order” by any of the various procedural modalities enumerated in the statute, including “a writ of injunction.” 47 U.S. C.A. § 401(b) (emphasis added). The clear thrust of the statutory language is that the district court shall grant enforcement of an FCC order to any party to the FCC proceedings where that party shows that an FCC order regularly made and duly served is in effect binding any person who has refused to comply with it, thereby occasioning injury to the party seeking enforcement. The relief afforded by the statute is clearly parallel with the relief sought by NET. No complexity of analysis nor refinement of definitional meanings can diminish the clarity or compulsion of the statutory statement. Nor can this Court find any cases that indicate that the statute should be construed otherwise where the only relief sought is compliance with an “order” meeting the requirements of the statute. The cases which have been variously relied on to defeat enforcement of the Preemption Order, by establishing that § 401 does not create any private enforcement rights with respect to FCC orders, are simply not factually appropriate to a situation where simple compliance is the only relief sought from the federal court. In all of those cases relief was sought that went beyond simple compliance with the order; rather, what was in issue in those cases was the availability under the statute of some form of relief different than, and claimed to be derivative from, simple compliance with the FCC order. The statute expressly provides only for enforcement to achieve compliance. Thus, it may be entirely appropriate to hold that the statute is not sufficiently broad in purposive scope to authorize any relief other than simple compliance. That limiting proposition, assuming it to be correct, does not mean, however, that the directory thrust of the statute (e.g., “The court shall enforce obedience”) is at all diminished where only simple compliance is sought by a party who satisfies all the requirements of the statute. Numerous courts have so applied the statute. Chesapeake and Potomac Telephone Company of Maryland v. Public Service Commission, 560 F.Supp. 844 (D.C.Md.1983); Pacific Northwest Bell Telephone Co. v. Washington Utilities and Transportation Commission, 565 F.Supp. 17 (W.D.Wash.1983); South Central Bell Telephone Co. v. Louisiana Public Service Commission, No. 83-557-A (M.D.La. June 27, 1983); amended (August 1, 1983); Southwestern Bell Telephone Co. v. State Corp. Commission of Kansas, No. 83-4090, (D.Kan. April 8, 1983); Brookhaven Cable TV, Inc. v. Kelly, 428 F.Supp. 1216, 1221, n. 20 (N.D.N.Y.1977), aff’d 573 F.2d 765 (2d Cir.1978), cert. denied 441 U.S. 904, 99 S.Ct. 1991, 60 L.Ed.2d 372 (1978); North Carolina Utilities Commission v. Federal Communications Commission, 537 F.2d 787, 790-91, n. 2 (4th Cir.1976). Such application appears to this Court to have the sanction in principle of the United States Supreme Court in its application of parallel provisions of the Communications Act, 47 U.S.C.A. §§ 151, et seq., in Ambassador, Inc. v. Federal Communications Commis sion, 325 U.S. 317, 65 S.Ct. 1151, 89 L.Ed. 1637 (1945). Accordingly, this Court concludes that NET was “a party” to the FCC proceeding resulting in the Preemption Order; that the MPUC is “a person” bound by the Order; that the Order was “regularly made and duly served,” and that the Order is one subject to enforcement within the intendment of 47 U.S.C.A. § 401(b). Thus, NET is entitled to the injunctive relief it seeks if MPUC’s non-compliance is causing injury, within the meaning of the statute, to NET. (e) Whether NET Has Demonstrated That It is Sustaining Harm as a Result of the MPUC’s Continuing Noncompliance With The Preemption Order NET contends that it is entitled to injunctive relief upon a showing that MPUC has failed to obey the Preemption Order and that some injury is inflicted upon NET as a result of that disobedience. NET Brief, at 8. NET contends that injury does in fact result from MPUC’s refusal to employ RLDM for rate making purposes because: (1) NET is denied current revenues necessary to offset current levels of allocated depreciation expense under RLDM, id. at 9; (2) it must increase its annual external capital financing requirements by approximately $800,000 without current recovery of the cost of that additional financing, id. at 9-10; (3) it will not recover the full costs of existing capital assets over the period of life of those assets, thereby suffering a capital recovery shortfall of approximately $20,000,000 over the life of the present asset complex. Id. MPUC makes multiple contentions on the injury issue. These are: (1) that even if RLDM is utilized, “perfect and instantaneous adjustments [of asset life] cannot in reality occur with respect to each of the company’s assets, and the remaining life method does not insure in fact the perfect recovery that [NET’s] hypothetical example might suggest.” MPUC Brief, at 12; (2) that NET has not shown that even if such a difference in the rate of capital recovery does in fact occur, “any actual harm either to the company’s investors or to the company itself” results from it, id. at 12-13; (3) that the depressive effect upon current cash flow occasioned by the use of WLDM and the additional cost of financing incident thereto do not result in injury to NET over the long term, id. at 16-21; and (4) that the use of WLDM has no long-term adverse impact on NET’s earnings level. Id. at 21-22. The purpose of the injury requirement in § 401(b) is two-fold: first, to avoid purposeless federal court interference in rate making disputes where no damage is done by disobedience of FCC orders; and second, to assure that where the effect of such disobedience is to deny an intended benefit of an FCC order, the party injured by the denial of that benefit shall have an effective avenue of redress in federal court to prevent the continuance of such injury. Thus, it is clear that if the person against whom enforcement is sought can show that its disobedience of the order does not deprive the party seeking enforcement of any benefit secured to it by the FCC order in question, the federal court may not interfere in the regulatory process by the exercise of its injunctive jurisdiction. The violation is, in practical terms, merely technical and no exigency exists sufficient to require taking the enforcement process out of the normal regulatory context. In such situation, the timing of effective enforcement is not a critical factor because no harm is done by the noncompliance. On the other hand, it is equally clear that where it appears that a benefit intended to be conferred by the order is being denied to the party seeking enforcement of it, because of disobedience of the order, the factual dynamic takes on an additional dimension. The underlying rationale of the statutory grant of authority is that parties to FCC proceedings are entitled to current compliance with FCC orders regularly made and duly served from those persons intended by the FCC to obey those orders and that such parties should not be required to suffer an injury resulting from the current deprivation of the intended benefits because of unjustified disobedience. Where deprivation of the benefit of the orders to be enforced occurs, injury takes place. The existence of that injury justifies, as a matter of legislative policy judgment, the interposition of the authority of the federal court to alleviate that ongoing injury and to preserve the sanctity and force of regularly made orders. Seen in this context, the § 401(b) requirement of injury is merely a threshold requirement justifying the need for action by the federal court. The scope of injury, as the term injury is used in § 401(b), is to be measured by the nature and scope of the benefit meant to be conferred by the particular order sought to be enforced. Thus, the determination of the characteristics of that benefit, within the intendment of the FCC in promulgating the particular order, becomes the critical factor in perceiving whether injury, within the meaning of the statute, results from disobedience of the order. It is significant that the order as to which enforcement is sought is the Preemption Order. That Order has an element of impact that is not present in either Order No. 20188 or in the Prescription Order. Order No. 20188 simply allowed the utilization of RLDM, and the Prescription Order prescrib