Full opinion text
ORDER OF COURT MO YE, Chief Judge. Background Facts This antitrust action is brought by the Greensboro Lumber Company (“Greensboro”) against the Georgia Power Company (“Georgia Power”), the Municipal Electric Authority of Georgia (“MEAG”), the participants in MEAG comprised of 46 Georgia municipalities and one county (“Participants”), the Oglethorpe Power Corporation (“Oglethorpe”), the members of Oglethorpe comprised of 39 rural electric membership cooperatives (“EMCs”), and the City of Dalton (“Dalton”). The suit challenges various practices and arrangements among these defendants in the electric service industry in a service area which encompasses most of the State of Georgia. The only areas excluded are relatively small areas served by the Savannah Electric and Power Company (Chatham and Effingham Counties) and certain rural cooperatives in North Georgia (Fannin, Union, and Towns Counties) which purchase their full power requirements from the Tennessee Valley Authority. The provision of electric service involves several different levels of activity. The supply of electricity to the end-users, agricultural, industrial and residential consumers, is called the “retail distribution” of electricity. Retail electric service in Georgia is supplied by the Savannah Electric & Power Company, the distributors of the Tennessee Valley Authority, Georgia Power, the EMCs, the Participants, two political subdivisions that elected not to join MEAG, and Dalton. The entities supplying electricity at retail need, in turn, to buy electricity at “wholesale”, except to the extent they generate their own power. Electric energy supplied to electric utilities or to public authorities for resale or distribution is referred to as “wholesale electric energy” or “sales for resale.” The generation of electric power in Georgia takes place at a number of central electric generating stations located throughout the state. The output of such stations, together with power supplied from federal hydroelectric facilities provided by the Southeastern Power Administration (“SEPA”), is transmitted over a network of transmission lines and other facilities to “delivery point substations” at which the suppliers of retail electric service receive the power. Such transmission facilities are interconnected through a number of interchange agreements to the transmission systems of utilities outside Georgia, including those in Florida, Alabama, Tennessee, North Carolina and South Carolina. Power sales and purchases made over these transmission interconnections provide additional sources of electric power supply to the wholesale power suppliers in Georgia. As will be discussed later in this opinion, MEAG, Oglethorpe, Georgia Power and Dalton have agreed to operate the transmission lines owned individually by each of them as an “integrated” system. Electrical power is viewed as having two components, capacity and energy. “Capacity” refers to the capability of a generating unit to produce a specified amount of electrical energy at an instant in time. Capacity is measured in multiples of watts (kilowatts or megawatts) and is analogous to the horsepower of an engine. “Energy” is the electricity actually delivered to customers. It is measured in terms of volume (watts) and time (hours) and is often expressed in kilowatt-hours. While rate structures may vary, payments for “energy” generally depend upon the amount of electric energy actually taken by the buyer, and are based on the variable costs of generating the energy (fuel and certain operating expenses). When, on the other hand, a buyer pays for “capacity”, it makes a payment based on the fixed costs of the capacity committed and not otherwise included as a variable cost (typically including principal and interest payments on debt, certain operation and maintenance expenses and certain other costs). In consideration for this, a specified amount of capacity is reserved for, and dedicated to, the buyer’s use. Accordingly, if capacity is to be paid for, it must be dependable and available for the generation of energy if, as, and when needed by the buyer. Georgia Power, a subsidiary of the Southern Company, is an investor-owned, vertically-integrated business corporation engaged in the generation, transmission, and retail and wholesale sale of electricity in Georgia. Georgia Power operates on an integrated and pooled basis with other corporate affiliate members of the Southern electric system pursuant to the integration standards of the Public Utility Holding Company Act of 1935, 15 U.S.C. §§ 79k, 79b(a)(29)(A) (1980). Prior to 1976, Georgia Power owned the vast majority of Georgia’s electrical bulk power generation and transmission facilities. In 1971, Georgia Power applied to the Atomic Energy Commission (“AEC”), now the Nuclear Regulatory Commission (“NRC”), for a license to construct the Edwin I. Hatch Nuclear Plant, Unit No. 2 (“Plant Hatch”) and the Vogtle Nuclear Plant, Units 1, 2, 3 and 4 (“Plant Vogtle”). Pursuant to Section 105(c) of the Atomic Energy Act, 42 U.S.C. § 2135, the AEC was required to review Georgia Power’s license applications to determine whether the issuance of the requested license to Georgia Power “would create or maintain a situation inconsistent with the antitrust laws.” This statutory provision also obligates the United States Attorney General to review each license application and to advise the AEC of the need for a hearing to consider potential antitrust objections to the proposed license. On August 2, 1972, the Antitrust Division of the Department of Justice notified the AEC that the licensing of Plants Hatch and Vogtle raised potential antitrust problems. The Attorney General informed the AEC that the Justice Department’s review suggested that Georgia Power had, among other things, exercised its monopoly power to prevent the establishment of alternative bulk power supply systems in Georgia. As a result of this advice, notice was given to the public and a hearing was scheduled regarding the antitrust implications of Georgia Power’s application. The EMCs (through their trade association, the Georgia Electric Membership Corporation), the Participants (through their trade association, the Power Section of the Georgia Municipal Association), and Dalton petitioned to intervene before the AEC in opposition to Georgia Power's application. The AEC set the Hatch application for hearing. At this juncture, a slight digression is appropriate in order to give some background information about these intervenors. The 39 EMCs are all rural electric membership corporations organized between 1936 and 1945 pursuant to the Georgia Electric Membership Corporation Act, O.C. G.A. §§ 46-3-170 through 46-3-541, and/or its predecessor, the Electric Membership Corporation Act of 1934, O.C.G.A. §§ 46-3-70 through 46-3-97. The EMCs engage exclusively in the retail distribution of electricity to consumers in relatively sparsely-populated rural areas. These consumers automatically become members of the respective corporation. Each customer/“member” of the corporation is entitled to one vote, regardless of the size of its purchase of electricity. Each corporation is governed by a board of directors elected by its members each year at the equivalent of a town meeting. Prior to the creation of Oglethorpe in 1974, the EMCs relied on Georgia Power and, to a limited degree, SEPA for their power and energy. The Participants consist of 47 Georgia political subdivisions (46 cities and one county, Crisp County). Each Participant engages in the retail distribution of electricity to the consumers living in the area assigned to it by the Georgia Public Service Commission (“PSC”). Prior to the formation of MEAG in 1975, each of the Participants, except Crisp County, was dependent upon Georgia Power and, to a limited degree, SEPA for its wholesalé electric requirements. Crisp County owned and continues to own its own generation and transmission facilities. The City of Dalton engages in the retail distribution of electricity to consumers living in Dalton. Dalton declined to join MEAG when MEAG was formed. Prior to the hearing, Georgia Power, the EMCs, some of the Participants, Dalton, the AEC staff, and the Justice Department negotiated a proposed settlement (“Settlement”) in which Georgia Power agreed to sell a portion of certain nuclear-fueled units and of certain coal-fired generation facilities to the EMCs, the Participants, and Dalton. It is worth noting, however, that neither the EMCs nor the Participants have any direct ownership interests in any of these facilities; their interests are held by Oglethorpe and MEAG, respectively. The Settlement also provided that Georgia Power would provide transmission services with respect to the “project power” generated at the jointly owned facilities and would file a “partial requirements tariff” in order to make “supplemental power” available to the other parties at a set rate. In 1975, this tariff was filed with, and approved by, the Federal Power Commission, now known as the Federal Energy Regulatory Commission (“FERC”). Additionally, Oglethorpe, MEAG, and Dalton appointed Georgia Power as their agent with sole authority for, among other things, the planning, licensing, design, construction, operation, maintenance and disposal of the generation facilities. These parties also require Georgia Power to comply with prudent utility practices while pursuing these activities on their behalf. Specifically, the Settlement stated that Georgia Power’s license application would be subject to conditions (“License Conditions”) providing, among other things, for: (1) purchase by the EMCs and the municipalities of partial ownership interests in Georgia Power’s nuclear plants then under construction or planned for the future; (2) coordination and sharing of reserves by the parties; (3) provision of transmission services over facilities owned by Georgia Power; and, (4) sales of partial requirements at voltages appropriate for the load to be served. These License Conditions require Georgia Power to provide these bulk power supply services to all utilities offering retail distribution of electricity to the public operating within Georgia Power’s service area and to public bodies and cooperatives such as MEAG and Oglethorpe. To effectuate the Settlement, the EMCs, the intervening Participants, and Dalton released any antitrust claims they might have had against Georgia Power. On August 8, 1974, in order to carry out the terms of the Settlement, to create economies of scale through integrated and unitary operations, and to enhance their own ability to viably compete with Georgia Power, the EMCs formed Oglethorpe. Oglethorpe is a not-for-profit electric generation and transmission cooperative (“G & T”) which was organized to supply the electric power needs of its 39 members through the generation, wholesale sale, wholesale purchase, and transmission of electricity. Oglethorpe is wholly-owned and run by its member-owners, which dictate its policies and activities, including the rates which the EMCs will be required to pay for wholesale power, the forecasting and projection of need for future power supplies, and all other major activities of Oglethorpe. The EMCs are obliged to supply the aggregate requirements of their retail consumers through bulk purchases of power and energy and to maintain a distribution system to deliver power and energy primarily to their rural consumers. In order to meet these obligations, the EMCs entered into a series of “wholesale power sales contracts” under which the EMCs purchase most of their energy needs from Oglethorpe. However, Oglethorpe, through its member-controlled board, sets its rates so that the revenue it receives from the EMCs, with any revenues received from other sources, is only sufficient to pay Oglethorpe’s expenses, including costs and interests on all outstanding debts, and to provide for reasonable reserves. Any retained excess revenue is assigned to each EMC as “patronage capital,” on the basis of each EMC’s purchases. Similarly, to help effectuate the terms of the Settlement and to create economies of scale, Crisp County and all of the intervening municipalities except for Dalton, which chose to participate in the ownership arrangements on an individual basis, joined MEAG. MEAG was created by the Georgia General Assembly in 1975. O.C.G.A. §§ 46-3-110 et seq. It was formed to develop and provide, on a nonprofit basis, electric power in “bulk” to meet the needs of certain municipal and other governmental entities in Georgia (the Participants) that provide electric service at retail to ultimate consumers. To this end, MEAG also entered into a series of “wholesale power sales contracts” with the Participants. O.C.G.A. § 46-3-112 provides that MEAG “shall be a public corporation of the State of Georgia and shall have a perpetual existence. This authority, however, shall not be a state institution nor a department or agency of the state but shall be an instrumentality of the state____” MEAG is governed by nine members, serving three year terms, elected by the Municipal Electric Authority of Georgia Membership Election Committee, which is composed of representatives from each participating political subdivision. O.C.G.A. §§ 46-3-113 through 46-3-116.- The Settlement itself was reviewed by the Department of Justice which opined that partial ownership of the Hatch and Vogtle Plants by MEAG, Oglethorpe and Dalton would not create or maintain a situation inconsistent with the antitrust laws. Moreover, the Justice Department concluded that the partial ownership arrangement as well as the purchase and ownership by Oglethorpe, MEAG and Dalton of portions of the high voltage transmission grid previously owned by Georgia Power would have a pro-competitive effect in the electrical services market because they would provide actual and potential competitors of Georgia Power with viable alternative power supply sources which would, consequently, enable them to compete effectively with Georgia Power. The acquisition by MEAG, Oglethorpe, and Dalton of ownership in generation facilities created a new need for long-term transmission arrangements. Accordingly, in compliance with the License Conditions, Georgia Power filed, at the same time that it filed its proposed partial requirements tariff, a proposed transmission service tariff with the Federal Power Commission, the predecessor to the FERC. The transmission tariff, which was also approved, provided for the creation of an Integrated Transmission System (“ITS”). The ITS re-suited from a series of three separate, but substantially identical, ITS agreements entered into by MEAG, Oglethorpe, and Dalton with Georgia Power, which, unlike other Georgia utilities, elected to participate in the ITS. The Participants and the EMCs are not direct parties to the ITS agreements. However, because of agreements between Oglethorpe and the EMCs and between MEAG and the Participants, both the EMCs and the Participants indirectly receive the benefits of the ITS. Essentially, Georgia Power, Oglethorpe, MEAG, and Dalton agreed to operate as an “integrated” system the transmission lines owned individually by each of them. The agreements provide that each participant in the ITS may use all of the transmission system facilities included in the system in order to meet its transmission needs without charge, regardless of ownership, in serving its own customers. The agreements further provide that each party may, at its own discretion, use the transmission facilities for transactions with small power producers and cogenerators. Participation in the ITS makes it possible to transmit power from central electric generating stations and interconnection points to the retail distribution level. It is through use of the ITS, for instance, that MEAG is able to provide power to the Participants and Oglethorpe is able to provide power to the EMCs. Absent these agreements, the only way each entity would be able to obtain access to electricity generated at a point beyond its own transmission system would be to obtain the consent of, and pay for the transmission or “wheeling” services of, the owner of the connecting system. Participation in the ITS enables the parties to coordinate the development of their transmission facilities, makes unnecessary the construction of duplicate facilities, and, in general, provides an opportunity for achieving economies of scale. The ITS is constructed and operated to serve the load of the public utilities operating in Georgia on an integrated basis. The ITS occupies public rights of way which have been acquired in part through powers of eminent domain and is dedicated to public utility service. The partial requirements tariff and the transmission service tariff were approved in 1977 as reasonable by the FERC; they were incorporated into the proposed Settlement. The Justice Department approved the Settlement, and the antitrust proceeding against Georgia Power was subsequently dismissed. Although the NRC never expressly approved the License Conditions, Dalton, MEAG, and Oglethorpe, nonetheless, entered the bulk power supply field by acquiring interconnected transmission lines and undivided interests in plants Hatch and Vogtle as well as two other coal-fired power generating plants, the Scherer Plant and the Wansley Plant. Currently, Oglethorpe, MEAG, and Dalton each purchase electric energy and capacity from Georgia Power at the rate established by the partial requirements tariff. The partial requirements tariff is amended from time to time subject to the approval of the FERC. Oglethorpe, MEAG, and Dalton also each sell some electric energy and capacity back to Georgia Power pursuant to the joint ownership agreements which exist between and among these parties. In distributing their retail electricity, Georgia Power, Dalton, the EMCs, and the Participants are all “electric suppliers” as this term is used in the Georgia Territorial Electric Service Act, O.C.G.A. §§ 46-3-1 et seq, which was enacted in 1973. As such, they are all governed by the Act. The purpose of this Act is (1) to assure the most efficient, economical, and orderly rendering of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and enhancement of the state’s physical environment, and (4) to protect and conserve lines lawfully constructed by electric suppliers ... O.C.G.A. § 46-3-2. The Georgia Territorial Electric Service Act empowers the Georgia Public Service Commission to assign to individual retail electric power suppliers exclusive geographic territories within Georgia, subject to certain narrow exceptions which are not relevant to this case, for the distribution for retail electricity. The PSC also has the authority to declare a geographic area unassigned if it so chooses. O.C.G.A. §§ 46-3-2 through 46-3-9. The Georgia Territorial Electric Service Act also empowers the PSC to enforce its exclusive territorial assignments: At any time, upon its own or the complaint of any other electric supplier or any other interested party, the commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and other interested parties, and after a hearing, to enforce the provisions of this part by appropriate orders. O.C.G.A. § 46-3-13. This statute was held to be constitutional by the Georgia Supreme Court in City of Calhoun v. North Georgia Electric Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975). Pursuant to this law, Georgia Power, the EMCs, the Participants, and Dalton are authorized to serve exclusively at retail a geographic area designated by the PSC. Neither Oglethorpe nor MEAG has a certified territory in which to serve, and neither serves any electrical load at the retail distribution level. The PSC assigned Rayle EMC the area encompassing the plaintiff’s facility in Greensboro, Georgia. The plaintiff in this action is in the business of producing lumber and lumber byproducts for commercial uses. Greensboro has lumber production facilities in Greensboro and Carlton, Georgia. Prior to 1979, the plaintiff purchased all the electric energy it needed to operate its facility in Greensboro, Georgia from Rayle EMC at retail. Greensboro has used and continues to use electric energy purchased from Georgia Power to provide the energy necessary to operate its facility in Carlton, Georgia. In early 1978, the plaintiff decided to buy and construct a steam-turbine driven generator system to generate electricity at its Greensboro facility. The plaintiff intended to use the waste and some by-products from its lumber production as fuel in order to operate the boiler and the generator system. Greensboro claims that, prior to purchasing or constructing the generator system, it tried to negotiate an arrangement with Rayle EMC whereby Greensboro would simultaneously sell electric energy and capacity to Rayle EMC and buy backup energy from Rayle EMC; but that Rayle EMC refused. Greensboro also claims that it asked Rayle EMC whether it would consider buying just the excess electric energy and capacity which Greensboro would generate. Greensboro states that Rayle EMC expressed some interest in this proposal but informed Greensboro that all of its purchases would have to be made through Oglethorpe, pursuant to the wholesale power sales contract it had with Oglethorpe. In the summer of 1978, Greensboro purchased a generator system with a rated capacity of 7500 kilowatts. At its peak, Greensboro uses approximately 2200 kilowatts to operate its facility at Greensboro, Georgia. Because it could not secure a satisfactory price elsewhere, Greensboro constructed its own distribution system. All of this was completed by March 1979, at which time Greensboro disconnected from Rayle EMC and began generating its own electric energy. Greensboro became energy self-sufficient at that plant with no interconnection with any outside source of electric energy and capacity. During the interim, the Federal Public Utility Regulatory Policies Act of 1978,16 U.S.C. § 824a-3, (“PURPA”), which shall be discussed later in this opinion, was enacted by Congress. Several months after it began generating electricity, Greensboro actively began to seek purchasers for its excess electric energy and capacity. The plaintiff conducted negotiations with MEAG; however, Greensboro alleges that MEAG offered a price for Greensboro’s electric energy which was less than half of what it cost Greensboro to generate it, was far below MEAG’s avoided energy cost, allegedly in violation of PURPA, and included no payment for capacity. Greensboro received a similar response from Georgia Power, which offered to pay Greensboro a “split-the-savings” energy cost rate for its output. Additionally, Greensboro claims that Georgia Power offered to sell back-up energy at retail to Greensboro on the condition that Rayle EMC consent; but that, Rayle EMC refused. As well, the plaintiff alleges that Georgia Power refused to go along with Greensboro’s alternative suggestion that, rather than having Greensboro sell its electric energy and capacity to Georgia Power, Georgia Power transmit Greensboro’s excess electric energy on the ITS to Greensboro’s facility in Carlton. Georgia Power claims, however, that it is physically impossible, from an engineering perspective, to direct energy generated at the plaintiff’s Greensboro premises across the ITS for delivery to the plaintiff’s Carlton Plant. Greensboro asserts that, having no other buyer available, it entered into a five-year contract on August 3, 1981, with Oglethorpe for the sale of its electric energy and capacity. However, the plaintiff alleges that Oglethorpe pays significantly less under this contract than Oglethorpe’s avoided energy and capacity costs and less than Oglethorpe pays Georgia Power under the partial requirements tariff for its energy and capacity. Additionally, Greensboro asserts that since the consummation of the contract with Oglethorpe, Oglethorpe has made numerous unilateral changes in the terms of the contract, including changes in certain rates and the method by which capacity payments are calculated. Among the terms of this contract was a requirement that Greensboro be allowed to interconnect with the ITS. This was done in September, 1981; however, Greensboro claims that it was overcharged for the construction of the interconnection facility. Although it is a generator and wholesale seller of electricity, Greensboro does not own any electric lines, other than those which connect its plant to the statewide transmission grid. The plaintiff is not engaged in the transmission business. Regarding sales of retail power to Greensboro, Greensboro entered into a contract with Rayle EMC for the purchase of this service. Greensboro asserts, however, that, during the period from March 1979 through the end of 1983, with the exception of a limited period of time, it was unable to obtain back-up, maintenance or interruptible power from either Oglethorpe or Rayle EMC. While conceding that Rayle EMC has offered to sell some back-up energy to it, the plaintiff claims that these offers were at a price which was not just and reasonable. The plaintiff does admit that Rayle EMC began to provide it with scheduled maintenance power in 1984; however, Greensboro states that it was told that it could not receive scheduled maintenance power during the period from June 1 through September 30. Greensboro alleges that on September 10, 1984, it was forced to shut down its generating facility because of an emergency equipment failure. Greensboro claims to have asked both Oglethorpe and Rayle EMC to provide it with emergency interruptible back-up power; but that, they refused. As a result, the plaintiff states that it was forced to shut down its generation and its lumber production facilities. On July 13, 1984, in what the plaintiff characterizes as a desperate, good faith effort to sell its electric energy and capacity at fair prices, Greensboro mailed a letter to Georgia Power, each of the EMCs, Dalton, MEAG, and each Participant soliciting from each an offer to purchase its electric energy and capacity. The letter also requested each utility to provide the plaintiff with data pertaining to its system costs. Greensboro claims that (1) Georgia Power indicated a willingness to negotiate a contract which would pay Greensboro the amount of Georgia Power’s avoided costs for energy but no amount for capacity; (2) four of the EMCs did not respond at all; (3) the remaining EMCs responded by refusing to purchase Greensboro’s energy and capacity; (4) MEAG indicated a willingness to negotiate a contract which would pay Greensboro the amount of MEAG’s avoided costs for energy but no amount for capacity; (5) each Participant, except Crisp County and Albany responded to Greensboro through MEAG and declined to contract directly with Greensboro; (6) Albany responded by referring Greensboro to MEAG; (7) Crisp County provided the information requested but, while it did not make any offers to purchase, it specifically informed Greensboro that no payment would be made for its capacity; and (8) Dalton did not respond. Not having received any answers to its liking, Greensboro filed this lawsuit. The Complaint Count I of the amended complaint challenges the following conduct as violative of § 1 of the Sherman Act: (1) the wholesale power sales contracts between Oglethorpe and the EMCs; (2) the wholesale power sales contracts between MEAG and the Participants; and (3) the joint operation and ownership agreements between and among Oglethorpe, Georgia Power, MEAG and Dalton. Greensboro claims that these actions eliminate competition and reduce trade in the electric energy and capacity transmission, wholesale sale, and wholesale purchase markets. This, in turn, has the effect of precluding persons such as Greensboro from competing with Georgia Power, Oglethorpe, MEAG, and Dalton in these markets. Specifically, Greensboro alleges that it was injured because it could not transmit its electric energy and capacity to potential customers within and outside Georgia and it could not sell its electric energy and capacity to the EMCs and to the Participants. Count II of the amended complaint alleges that the defendants monopolized or attempted to monopolize the transmission, wholesale purchase and wholesale sale of electricity in the State of Georgia in violation of § 2 of the Sherman Act. Greensboro alleges that the defendants have monopolized, or attempted to monopolize, the transmission of electric energy and capacity through their joint ownership and operation of the ITS. Greensboro claims that through this monopoly power and through the wholesale purchase and sale agreements which exist between and among the parties, the defendants have monopolized, or attempted to monopolize, the wholesale purchase and sale markets. The plaintiff maintains that, as a result of these actions, it has been prevented from transmitting its electric energy and capacity to potential customers within and outside of Georgia and has been prevented from selling electric energy and capacity to the EMCs and to the Participants. Count III of the amended complaint alleges that the power supply contracts of Oglethorpe, the EMCs, MEAG, and the Participants violate § 3 of the Clayton Act. These exclusive dealing agreements tend to create a monopoly in the wholesale sale, and a monopoly in the wholesale purchase, of electric energy and capacity in the State of Georgia. Greensboro claims that it has suffered harm because it has been prevented from selling electric energy and capacity to the EMCs and to the Participants. Count IV of the amended complaint alleges violations of PURPA by Oglethorpe, the EMCs, MEAG, and all of the Participants with the exception of the City of Albany. Under PURPA, these defendants were required to submit to the FERC their plan for implementation of each of their obligations under PURPA. (These implementation plans are hereinafter referred to as “Interconnection Policies”). The Interconnection Policy of Oglethorpe and the EMCs provide that only Oglethorpe will purchase energy and capacity from qualifying cogeneration facilities and qualifying small power production facilities (“qualifying facilities”) and that only the EMCs will sell supplemental, interruptible, back-up and maintenance power to qualifying facilities. The Interconnection Policy of MEAG and the Participants (except Albany) provides that, with respect to qualifying facilities with design capacity greater than 100 kW, such as Greensboro, only MEAG will purchase energy and capacity. Furthermore, only the Participants, with the exception of the City of Albany, will provide retail service to a qualifying facility. Greensboro contends that these Interconnection Policies violate PURPA on their faces and as applied to Greensboro. Count V of the amended complaint alleges violations of PURPA by Oglethorpe and Rayle EMC. Greensboro alleges that from August 1981 until February 1984, with the exception of a limited period of time, Greensboro was unable to obtain back-up or maintenance power at a nondiscriminatory, just and reasonable rate from either Oglethorpe or Rayle EMC. Greensboro claims that Rayle EMC and Oglethorpe refused to sell it schedule maintenance power from June 1 through September 30 of each year. Furthermore, according to Greensboro, both Rayle EMC and Oglethorpe still refuse to make interruptible power available to Greensboro. These actions, Greensboro contends, violate PURPA. Count VI of the amended complaint is a state breach of contract claim against Oglethorpe based on alleged violations of the energy and capacity contract which exists between Greensboro and Oglethorpe. Oglethorpe and the EMCs Oglethorpe and the EMCs (hereinafter “the Oglethorpe Group”) characterize the case at bar rather poetically as “a case crafted of whole cloth — spun out of misapplied antitrust theory, grandiose rhetoric, and counsel-generated controversy.” The Oglethorpe Group expresses the view that Greensboro, a for-profit co-generator of electricity, is complaining about the joint ownership of Georgia Power’s generation and transmission facilities by the defendants, private municipal and rural cooperative utilities, because it does not desire to become, and accept the responsibilities and restrictions of being, a public utility. The Oglethorpe Group has filed a motion for summary judgment on all counts. Oglethorpe owes its existence to the Rural Electrification Administration (“REA”) in that it is principally financed by loans and loan guarantees of the United States, acting through the REA. The REA was established in 1935 by Executive Order to “initiate, formulate, administer and supervise a program of approved projects with respect to the generation, transmission and distribution of electric energy in rural areas.” Executive Order No. 7037 (May 11, 1935). The REA became a permanent agency of the federal government pursuant to the Rural Electrification Act of 1936 (“REA Act”), 49 Stab 1363, 7 U.S.C. §§ 901 through 916. The objectives of the REA Act were to extend the benefits of economical central station service to the numerous farms in sparsely-settled areas in which investor-owned utilities had not found it profitable to provide service. See 80 Cong.Rec. 2752 (daily ed. Feb. 25, 1936); Salt River Project Agricultural Improvement and Power District v. Federal Power Commission, 391 F.2d 470, 473 (D.C.Cir.), cert. denied, 393 U.S. 857, 89 S.Ct. 104, 21 L.Ed.2d 126 (1968). Although a few electric corporations predated the REA, in 1936, fewer than 10% of the nation’s farms had central station electric service. Rural electric corporations, the principal and preferred recipients of REA loans, have since become important suppliers of energy to rural America. In Georgia, for example, the EMCs cumulatively serve about one-quarter of the state’s total population, almost entirely in Georgia’s most sparsely-populated rural areas. While Oglethorpe was not formed until 1974, similar federated G & Ts began to form across the country soon after the passage of the REA Act nearly fifty years ago. These cooperatives were formed to meet the perceived need for greater efficiency in rural electric service through large-scale power generation and distribution. In essence, G & Ts were a direct response to a vital fact of the electric industry, known to Congress when the Rural Electrification Act was passed in 1936, and which has grown in importance with technological developments — viz., that the cost of power from a generating plant constructed by a typically small REA-financed rural electric distribution system would, in general, be prohibitively high. Under the plan of the REA Act, the REA is to lend money to federated cooperatives for the construction of a single generating plant and transmission line so that these federated cooperatives may, in turn, supply their member distribution systems with wholesale power which they, in turn, distribute to their member consumers at retail. This plan has, by and large, worked quite well. As Senator McGovern stated during the 1971 oversight hearings: The G. & T. cooperatives have provided a yardstick of wholesale power cost and service for the entire program and for the country. All consumers of electric power, regardless of the utility providing the service, will be injured if the G. & T. cooperatives’ ability to serve rural America is diminished. Continued federal support for G & Ts has been recognized as essential to permit small rural distribution systems and small municipal systems to be able to bargain effectively with investor-owned utilities for wholesale power supplies: Without the leverage of alternative power supply sources, a rural electric distribution cooperative (and, in the same way, a small municipal electric system) is at a real disadvantage in bargaining for wholesale power supply with a large investor-owned system. The lack of available G. & T. funds ... has effectively taken away the strongest bargaining tool of the small distribution utilities. In summary, an adequate supply of reasonably priced electric power for rural America depends in great measure on enough money in REA’s electric loan program for generation and transmission loans to give small systems a chance to strike the best deal for reasonably priced, adequate electric power supply, and ... protect them from complete dependence on the large companies with whom they frequently must compete for retail loads. In the 1971 Senate Hearings, Senator McGovern specifically referred to the desirability of the G. & T. alternative in Georgia as a means of alleviating dependence upon large investor-owned utilities for supplies of wholesale power: [a] rural electric cooperative manager from Georgia wrote to me — ‘if adequate low-cost capital is not made available soon for generation and transmission cooperatives, it is just a matter of time before the power companies will absorb distribution cooperatives through their wholesale power contracts.’ REA Administrator Norman Clapp voiced similar sentiments when he stated that, Participation of the small systems in the benefits of coordination and a continuous search for means of broadening this participation are fundamental if these systems are to continue to provide low cost power to their consumers and make the most efficient use of our fuel and capital resources____ Very few individual cooperative and municipal systems are able independently to realize the economies of scale associated with large generating units____ Their individual system demands are insufficient to warrant their sole ownership of such units. To some extent and in some places, the cooperatives have overcome this handicap by federating in power supply systems. Participation by Small Electrical Utilities in Nuclear Power: Hearings before the Joint Comm, on Atomic Energy, 90th Cong., 2d Sess. 111-112 (1968) (Statement of Norman M. Clapp, REA Administrator). The REA’s longstanding policy has been to make G & T loans when borrowers are unable to purchase an adequate and dependable supply of power, or when net wholesale costs would be reduced, but not to finance duplicative or unnecessary facilities. To further this goal, the REA has urged participation by federated cooperatives in agreements involving the joint ownership and operation of large-scale generation facilities: These considerations point up the urgent necessity for providing at this time assurance of participation by all electric utilities in a given region, including the electric cooperatives, in nuclear power plants planned for construction. The smaller systems cannot survive if their only stance is that of ‘trickle down’ beneficiaries, barred from direct participation in the economies associated with large-scale nuclear generation and EHV delivery of low-cost federally produced power. They cannot survive if they are restricted to generating their own power in small, obsolescing conventional plants or to purchasing power on the basis of overall system costs of their supplier, and are not admitted to the more sophisticated arrangements which have been developed reflecting the economies of the new large-scale technologies. Although the REA makes long-term loans to finance the construction and operation of generating plants, electric transmission and distribution systems, 7 U.S.C. §§ 901, 904, with an express preference for loans to public entities and federated cooperatives, the REA Act authorizes the REA Administrator to make loans only to those organizations which will furnish electric energy to “persons in rural areas who are not receiving central station service____ Such loans shall be on such terms and conditions ... as the Administrator shall determine. ...” 7 U.S.C. § 904. The REA Act further requires that such loans “be self-liquidating within a period of not to exceed thirty-five years,” id., and prohibits the Administrator from making any loans unless he “finds and certifies that in his judgment the security therefor is reasonably adequate and such loan will be repaid within the time agreed.” Id. The Administrator is required to report annually to Congress on REA’s loan activities. 7 U.S.C. § 910. Between 1975 and 1984, the REA entered into a number of loan agreements pursuant to Title 3 of the REA Act, 7 U.S.C. § 931, with Oglethorpe for the benefit of the EMCs and their consumers. As of March 12, 1985, the REA had made or approved loan guarantees to Oglethorpe in the amount of $3,765,763,278.00 and had approved insured loans to Oglethorpe in the amount of $26,530,000.00. Insured loans are made principally for distribution facilities, while loan guarantees are made primarily to finance generation and transmission facilities. Full repayment of all the loans currently guaranteed or insured by the REA is not scheduled to occur until the year 2021. In order to pay off its indebtedness, Oglethorpe receives revenue from the EMCs for their purchases from Oglethorpe under the wholesale power sales contracts. These contracts, which extend through the year 2022, obligate each EMC to buy all of its power and energy requirements from Oglethorpe, with the exception of a small amount of power purchased from SEPA pursuant to pre-existing arrangements. The wholesale power sales contracts provide that if an EMC purchases electric energy and capacity from any other source, Oglethorpe will charge that EMC for any revenues lost by Oglethorpe as a result of the purchase. Oglethorpe, in turn, purchases power and energy from Georgia Power under the partial requirements tariff and from qualifying facilities as necessary to supplement the output of its own power generation resources. In 1983, Oglethorpe purchased approximately 43% of the total energy it sold to the EMCs from Georgia Power and about 1% from qualifying facilities. Oglethorpe argues that, as a condition of, and security for, its loans and loan guarantees to it, the REA required Oglethorpe to enter into the wholesale power sales contracts with the EMCs. This contention is supported by the United States acting on behalf of the REA, which has filed various amicus curiae papers before this Court in this case. Both the Oglethorpe Group and amicus curiae United States argue that the REA Act authorizes the REA Administrator to determine “adequate security” and the “terms and conditions relating to the (loans) and the security” for the REA loans to Oglethorpe. 7 U.S.C. § 904. Accordingly, they maintain that the “all-requirements” contracts between Oglethorpe and the EMCS, which are challenged by Greensboro in Counts I, II, and III, were executed pursuant to, and at the directive of, the REA. Amicus curiae United States argues that the REA has a long-standing policy of requiring wholesale power sales contracts, virtually identical to the one executed between Oglethorpe and the EMCs, as the principal means of securing its loans. The all-requirements provisions of the wholesale power sales contracts ensure that Oglethorpe will have a steady and predictable market for its energy product; this, in turn, produces the revenue stream which secures repayment of the multi-billion dollar loans guaranteed by the REA. The Oglethorpe Group directs this Court’s attention to the fact that similar considerations led the Supreme Court implicitly to recognize the necessity of long-term all-requirements contracts in the electric utility industry. In rejecting an antitrust challenge to a utility’s 20-year all-requirements contracts, the Court in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 334, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), reasoned as follows: [A]t least in the case of public utilities the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise consumers are left unprotected against service failures owing to shut downs; and increasingly unjustified costs might result in more burdensome rate structures eventually to be reflected in the consumer’s bill. The Court found such “considerations” to have “compelling validity” in the utility field. Id. Additionally, the Oglethorpe Group and the United States argue that long-term all-requirements wholesale power sales contracts, virtually identical to those questioned by plaintiffs in this case, were expressly held valid and immune from antitrust scrutiny in Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir.), cert. denied, 393 U.S. 1000, 89 S.Ct. 488, 21 L.Ed.2d 465 (1968). The complaint in Alabama Power sought antitrust damages and an injunction voiding 35-year all-requirements electric power sales contracts between an Alabama electric generation and transmission cooperative and its 14 electric distribution cooperative members. The Fifth Circuit affirmed dismissal of the antitrust claims, specifically holding that the all-requirements contracts “were the result of valid governmental action and, hence, not violative of the antitrust laws.” 394 F.2d at 673. Greensboro advances several arguments to support its position that the Oglethorpe Group is not immune from antitrust liability. First, Greensboro argues that the REA Act, REA Bulletins, and the loan agreements themselves do not mandate the challenged all-requirements contracts. Second, Greensboro argues that Alabama Power is factually distinguishable from the instant case. Third, in the alternative, Greensboro argues that Alabama Power is no longer good law. This Court rejects each of Greensboro’s contentions. As to Greensboro’s first contention, while it may be true that the loan agreements do not specifically mention “all-requirements” contracts, they do contain pertinent and applicable provisions which obligate Oglethorpe to enter into wholesale power contracts with each of the EMCs “in form and substance satisfactory to the Administrator.” As attested to by Harold Y. Hunter, the REA Administrator, since its first loan to Oglethorpe in 1975, the REA has found such contracts “satisfactory” only if they contain provisions binding the EMCs to purchase all of their power needs from Oglethorpe for the life of the loan. The United States notes additionally that this practice is well-established; it seems that every REA Administrator since 1950, prior to approving any loans, has only been “satisfied” when wholesale power sales contracts exist which contain all-requirements provisions. Greensboro also implies that if the Administrator does require all-requirements contracts, his actions would be in excess of his authority under the REA Act and, thus, ultra vires. This Court believes that this implied argument has been laid to rest by the court in Alabama Power. Furthermore, the legislative history of the REA Act lends support to the view that Congress meant to bestow broad discretion upon the Administrator in order to carry out the purposes of the REA Act. Almost from the inception of the loan program, REA administrators have required that the contracts between the borrowing federated cooperatives and the individual distribution systems contain all-requirements provisions covering at least the period of the loan. The all-requirements provisions of the wholesale power sales contracts not only ensure that the cooperatives will have an adequate market for their power among their local utility members during the period of the loan but also assure the REA that the utilities making up the federated cooperative seriously desire the loan to be made and intend to use its share of the power capacity which the loan would create. This customary and long-established practice of the REA has been made known to, and acquiesced in, by Congress. During the 1951 hearings before a Senate Subcommittee of the Committee on Appropriations, the all-requirements agreements were characterized by the REA Administrator as the principal security for REA loans. The complete text of a typical all-requirements contract was also placed into the record of those hearings. See Hearings before the Senate Subcommittee of the Committee on Appropriations on Agricultural Appropriations for 1951, 81st Cong., 2d Sess., pp. 1342 et seq. Moreover, Congress has annually received reports of the agency’s activities and has approved continued funding for the same. Although it is a hazardous venture to draw any conclusions from congressional inertia, this Court feels that, if anything, Congress’ inaction in the face of long-standing REA practices indicates an endorsement of these practices. See Salt River Project Agricultural Improvement and Power District v. Federal Power Commission, 391 F.2d 470, 477 (D.C.Cir.) cert. denied, 393 U.S. 857, 89 S.Ct. 104, 21 L.Ed.2d 126 (1968). As to Greensboro’s second contention, this Court believes that the Alabama Power case disposes of the issue of the legality of the all-requirements wholesale power contracts. In Alabama Power, a public utility filed a complaint seeking antitrust damages and an injunction restraining the REA from lending $20,350,000.00 to an electric cooperative and avoiding 35-year all-requirements electric power contracts between the borrowing federated cooperative and its fourteen electric distribution corporation members. Despite a strong dissent by Judge Godbold, the Fifth Circuit affirmed the lower court’s dismissal of the antitrust claims, holding specifically that the all-requirements contracts “were the result of valid governmental action and, hence, not violative of the antitrust laws.” 394 F.2d at 673. The court’s decision was based on a determination that, by requiring the federated cooperative to obtain 35-year all-requirement contracts with its electric distribution corporations, the REA Administrator “was doing nothing unusual, but was simply following customary and long-established REA practice, clearly not beyond the ‘outer perimeter’ of his statutory authority to determine the security for the loan. Anything less might well mean the acceptance of inadequate security.” 394 F.2d at 676 (footnote omitted). Since the REA Administrator was immune from antitrust suit under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), for government actions within the scope of his duties as delineated in § 4 of the REA Act, the court held that the federated cooperative, wholly-owned by its member distribution corporations, must also be implicitly exempt from liability under the antitrust laws. Even though the court “fully appreciate^] that immunity from the antitrust laws is not to be lightly implied,” 394 F.2d at 677 n. 9, the court explained that antitrust liability could not be imposed on the REA borrower for complying with valid government requirements: The making of loans by the Administrator necessarily includes the existence and ability of borrowers to whom such loans can be made. If the security which the Administrator requires can be undercut and the borrower mulcted in treble damages for complying with the condition imposed by the Administrator for making the loan, then the functioning of the Act will be crippled, if not defeated. To avoid frustrating the intent of Congress, it must follow that in cases where the Administrator is immune from suit under the antitrust laws, the borrower is likewise immune. 394 F.2d at 677 (footnote omitted). See also Medical Association of the State of Alabama v. Schweiker, 554 F.Supp. 955, 966 (M.D.Ala.1983) aff'd. per curiam sub. nom Medical Association v. Heckler, 714 F.2d 107 (11th Cir.1983). (“The Sherman Antitrust Act’s prohibitions on the making of agreements in restraint of trade is not applicable to the federal government and its officials acting in their official capacity---- Similarly, private parties to the extent they are acting at the direction or with the consent of federal agencies also fall outside the pale of the act’s prohibition.”). Greensboro argues that there are significant factual differences between the case at bar and Alabama Power which render the latter inappropriate to any determination of the former. Greensboro maintains that Alabama Power merely held that a government borrower is immune from antitrust liability to the extent that the government’s security interest is the subject matter of the antitrust action. Greensboro asserts that the government only has a security interest in Oglethorpe’s REA-financed bulk power generating facilities, not in the purchase of bulk power by Oglethorpe from Georgia Power for resale to the EMCs. Greensboro argues that this position is supported by the fact that the all-requirements contracts obligate the EMCs “to purchase all of their electric requirements to the extent the borrowers shall have power and energy available.” Greensboro interprets the term “available” to mean only that power which Oglethorpe generated itself from its REA-financed facilities, rather than from Oglethorpe’s purchases from other sources. In other words, Greensboro argues that the challenged wholesale power sales contracts are not really all-requirements contracts. This Court, however, feels that this is too stringent an interpretation of the term. The wholesale power sales contracts expressly recognize that Oglethorpe “may purchase or otherwise obtain electric power and energy for the purpose” of supplying the EMCs. The all-requirements contracts in the present case, like those in Alabama Power, clearly contemplate that the federated cooperative will generate, purchase, or otherwise obtain electric power and energy for its member corporations. Hence, it is more logical to interpret the term “available” to mean power available through generation and purchase rather than through generation alone. A careful reading of Judge Godbold’s dissent makes clear that this is how the Alabama Power court interpreted the term “available.” While it is true that the majority, quoting from the REA Administrator’s affidavit, stated that, “[ujnder their contracts, with [the federated cooperative], the Members will be free to purchase from plaintiff and others their electric requirements in excess of the power and energy available from [the federated cooperative],” 394 F.2d at 676, it is also clear that the contracts provided that, upon the request of the federated cooperative with the approval of the REA, the members were to terminate all existing contracts with sources other than the cooperative. Additionally, the contracts provided that if, upon request, the member failed to terminate any contract with any power supplier other than the cooperative, either the cooperative or the REA could sue the member for specific performance. 394 F.2d at 678. See also United States v. Coosa Valley Electric Cooperative, Inc., Case # 85-C-0515-5 (N.D.Ala. February 5, 1986) [Available on WESTLAW, DCTU database] (court finds “immaterial” the fact that some of the power provided in fulfillment of the challenged all-requirements contract was purchased, rather than produced, by the wholesale supplier). Furthermore, it is clear from the record before this Court that the REA, Oglethorpe, and the EMCs never interpreted the wholesale power sales contracts to be anything less than true all-requirements contracts. As to Greensboro’s third contention, this Court is of the opinion that Alabama Power remains in full force and effect in this Circuit. Although a foreign circuit opinion, Hecht v. Pro-Football, Inc., 444 F.2d 931, 934 n. 6 (D.C.Cir.1971), has questioned the current validity of the majority opinion in Alabama Power, no court has overturned, reversed, or even narrowed the Alabama Power decision. At least one court has explicitly affirmed the continuing validity of Alabama Power. United States v. Coosa Valley Electric Cooperative, Inc., Case # 85-C-0515-5 (N.D.Ala. February 5, 1985) (40-year all-requirements power supply contracts between wholesale power cooperatives and their members are valid, enforceable, and immune from antitrust scrutiny in light of Alabama Power). Furthermore, it appears that Alabama Power has continuing validity in the Eleventh Circuit. See Medical Association, 714 F.2d 107. See also Saenz v. University Interscholastic League, 487 F.2d 1026, 1028 (5th Cir. 1973); Vest v. Waring, 565 F.Supp. 674, 686 (N.D.Ga.1983), both of which cite Alabama Power with approval. This Court is not unsympathetic to the plaintiffs position. The majority’s opinion was not only criticized by Judge Godbold in dissent but has also been severely criticized in some well-considered scholarly commentary. Alabama Power Co. v. Alabama Electric Cooperative: Rural Electrification and the Antitrust-Irresistible Force Meets Immovable Object, 55 Va.L.Rev. 325 (1969). The Court, however, is not considering this issue as a matter of first impression. Alabama Power is dispositive of the issue at hand. Alabama Power remains in full force and binding effect in this circuit unless and until it is overruled by the Eleventh Circuit Court of Appeals sitting en banc. Regardless, to the extent that Greensboro alleges that Oglethorpe has conspired with the EMCs, through the use of the power sales contracts, in violation of § 1 of the Sherman Act, this Court holds that Oglethorpe and the EMCs constitute a single entity and, hence, are incapable of conspiring under § l. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). The Copperweld court cited Sunkist Growers, Inc. v. Winckler & Smith Citrus Products, Co., 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962) as providing “strong support” for the “principle that substance, not form, should determine whether a separately incorporated entity is capable of conspiring under § 1.” Copperweld, 467 U.S. at 773, n. 21, 104 S.Ct. at 2743, n. 21. In general, a business entity “should be free to structure itself in ways that serve efficiency of control, economy of operations, and other factors dictated by business judgment without increasing its exposure to antitrust liability.” Copperweld, 467 U.S. at 773, 104 S.Ct. at 2743. As discussed earlier in this opinion, this Court considers Oglethorpe and the EMCs to be, in economic substance, an integrated unitary business enterprise. Oglethorpe is, in essence, a wholly-owned subsidiary of its collective members which was created for the purpose of providing them with their power supply needs. As such, Oglethorpe and its members are legally incapable of concerted action in violation of the antitrust laws. See City of Fulton, Missouri v. Associated Electric Cooperative, Case # N83-1C (E.D.Mo. March 8, 1985) [Available on WESTLAW, DCTU database] (defendants, a “super” generation and transmission cooperative which acts as bargaining and purchasing agent for the benefit of its owners, six generation and transmission cooperatives, which, in turn, are owned by 43 distribution cooperatives which primarily serve as retailers to their owners, their consumer-members, constitute a single entity legally incapable of conspiring). See also Century Oil Tool, Inc. v. Production Specialities, Inc., 737 F.2d 1316 (5th Cir. 1984) (two corporations which were wholly owned by three persons who together managed all affairs of the two corporations were a single entity for purpose of suit asserting a violation of the Sherman Antitrust Act); Lake Communications, Inc. v. ICC Corporation, 738 F.2d 1473 (9th Cir. 1984) (two wholly-owned subsidiaries of common parent incapable of conspiring). The Oglethorpe Group further maintains that it is entitled to summary judgment on Counts I, II, and III because the plaintiff has suffered no injury from any alleged antitrust violations and, therefore lacks standing to