competition, the fundamental effects of the conversion of the Little Inch would be to promote it.

Indeed, the arguments of the barge operators that the Little Inch will violate the Clayton Act and the Sherman Act verge on the extreme. As to the barge operators' contention that the acquisition by Texas Eastern of the Triangle Pipeline was a violation of Section 7 of the Clayton Act, quoted above, this facility was purchased in January, 1954. Neither at this time nor at any previous time had Texas Eastern been in the products transportation business, so that the acquisition of the Triangle Pipeline did not and could not lessen competition with anyone. Furthermore, Texas Eastern by reconversion would not "acquire directly or indirectly the whole or any part of the stock or assets of another corporation." It seeks merely to transfer property it now owns and operates from one use to another. There is nothing in Section 7 or any other part of the Clayton Act which prohibits the use of corporate property in another line of business. In any event, assuming that Section 7 were applicable, the record before us would not support a finding that the effect of the acquisition may be "substantially to lessen competition or tend to create a monopoly," as the section requires.

The barge operators' argument that conversion of the Little Inch would violate the antimonopoly provisions of the Sherman Act is to the effect that Texas Eastern seeks to displace the barge operators from the limited transportation market they presently serve; and that its power to do so derives from its improper use of its monopoly in the natural-gas business.

Preliminarily, we note that if the Little Inch were filled to capacity of 185,000 barrels in 1957, it would carry something less than 10 percent of the estimated 2,000,000 barrels per day which will be consumed in the markets in the elevenstate area this year. Under the law, it would seem doubtful that this small percentage could approach a monopoly; and even if the market were limited to the deficiency which exists in the area-500,000 barrels per day in 1955-it would seem that the proportion would still be less than that necessary to constitute a monopoly, where, as here, there is lacking any intent or purpose to monopolize. In any event, in most of its aspects, this is simply a repetition of the arguments we have already considered and denied. It is wholly fallacious to limit the transportation market in issue in this case to that presently served by the barge operators, in view of the increased demand in midwestern markets and the actual increase in volumes over the past few years the barge operators themselves have transported. The economies of the supply and demand of petroleum products, complicated by so many diverse elements and subject to such continual change, simply cannot be confined within any such rigid mold. It is also fallacious to contend that the association of the Little Inch with Texas Eastern results in any improper benefits, for the reason, already fully discussed, that there is no impropriety, and the further reason, likewise detailed above, that the benefits of the association outweigh any detriments which may attend it.

Finally in this connection, it deserves mention that even before Texas Eastern filed its initial application in these proceedings, certain of the barge operators, on May 21, 1954, filed an antitrust suit against Texas Eastern seeking to enjoin the conversion project, and later intervened in these proceedings, attaching a copy of their antitrust complaint to their petition to intervene, and raising the same contentions asserted in the antitrust case.1 19 Although the court denied a motion by Texas Eastern for summary judgment, in so doing it stated in an opinion handed down on August 2, 1955, that:

Absent a better showing than they had made thus far, we do not see how plaintiffs expect to prevail. They have made the matter appear to be highly complicated. Yet it seems to us to resolve itself fundamentally into a rather simple proposition: Plaintiffs are seeking to have this Court exercise its equitable powers, not just to stop an allegedly unlawful combination and threatened monopoly of certain markets by defendants, but to maintain in status quo their own unregulated quasi-monopoly of those markets-to escape prospectively superior competition they obviously fear and which they have not yet shown will be unfair.

Their own private interests, not those of the public, seem to be all they seek to serve.

We are not to be misunderstood as having prejudged the case in any sense, and we will maintain an open mind. That is none the less our present reaction.

19 River Co., Inc., et al. v. Texas Eastern Transmission Corporation, et al., District Court for the Western District of Louisiana, Civil No. 4714.

Therefore, were it not for the many caveats respecting summary judgments found in the appellate jurisprudence cited infra, we would feel justified in dismissing the action as not only not within the purview of the Sherman and Clayton Acts, but actually in their very teeth.

With these comments of the court we are in accord.

The national defense.-The other matter of public significance which we must consider under the Court's decision is whether the conversion of the Little Inch would imperil or be inconsistent with the national defense. This issue the barge operators do not discuss in their briefs in this case and apparently they have abandoned their claims on this score.

In any event, substantial evidence supports the conclusion that conversion of the Little Inch to the transportation of petroleum products would be of material aid to the national defense. There is convincing testimony that 90 days for conversion, which is the requirement of the National Security Provisions, is a short time for converting the line and that in the event of a national emergency, conversion would have to take place at a time when it could be least spared from gas service. On the other hand, if converted now, subsequently the capacity of the line could quickly be increased to almost double its initial capacity at considerable savings in time and money over construction of other facilities. In addition, if the refineries in the Chicago area were destroyed, supplies of products from the Little Inch, which could draw from widely dispersed refineries in oil producing or refining areas, would be of vital importance to that area.

Furthermore, in accordance with the court's opinion, we have considered the opinions of those agencies of government more directly concerned with this problem than we. In response to inquiry by the Commission, the Department of the Interior advised that reconversion of the Baytown, Texas, to Moundsville, West Virginia, section of the Little Inch to transportation of petroleum products would be "consistent" with national defense plans, and the Office of Defense Mobilization likewise advised that the proposed reconversion would "not be inconsistent with national defense planning"-clear answers to the barge operators' claim of imperilment of the national defense.

OTHER MATTERS

In original docket No. G-2503, the Booth Compressor Station was listed among the facilities for which authorization was requested. Located on Texas Eastern's Provident City to Vidor line in Texas, it was to have had 2,200 installed horsepower. This facility was certificated in opinion No. 282 but because of the court's remand had to again be considered along with all the facilities in docket No. G-2503. As described at the outset, when Texas Eastern proposed its expansion in docket No. G-9784, "minimum" and "maximum" facilities were proposed, and the "maximum" facilities were additional to those originally sought in docket No. G-2503. As the record developed, it was shown that Texas Eastern had erroneously included the Booth Compressor Station in its minimum facilities, and in opinion No. 296 and accompanying order we excluded this facility from certification. However, the Booth Compressor Station is needed to provide the service proposed under the maximum expansion and therefore is included in the authorization of the maximum facilities granted herein.

In the matter of financing Texas Eastern's proposed "maximum" facilities, although we could not approve the proposed plan of financing in opinion No. 296 and accompanying order until Part B of the case had been determined, we stated in that opinion that if we were to authorize those facilities then, we would find "that the proposed capitalization ratio would not be improper and that Texas Eastern could finance such project." However, we reserved the matter for final determination until such time as we should find that the application to abandon the Little Inch is permitted by the public convenience and necessity. In this opinion and order we grant permission to abandon. Accordingly, the public convenience and necessity require that Texas Eastern file with the Commission within 60 days of the date of issuance of this opinion, its plan for financing its maximum facilities, as set forth hereinabove and more fully described in opinion No. 296 and accompanying order, satisfactory to the Commission.

The barge operators contend that their true position has been variously misinterpreted, setting forth, as quoted previously, that "they would not object to the Little Inch as a products line if it stood on its own two feet-and did not have the natural gas nexus and that they would not object to a conditional approval of the Little Inch abandonment, conditioned on a severance,

at the outset, of the Little Inch from the natural gas transmission company." The foregoing analysis and discussion, disclosing the lack of valid objection to the "nexus" and its actual public benefits, fully establishes that the condition they request is not required by the public convenience and necessity under Section 7(e).

Finally, the brief filed by Commission staff counsel sets forth the staff's position that in fixing Texas Eastern's rates for natural-gas service, the company should not be allowed to reflect in its natural-gas costs any of the investment, operating costs, revenues, and other elements resulting from its oil operations; and recommends that a condition be imposed, requiring that any losses suffered by Texas Eastern in its oil business shall be borne by the stockholders of Texas Eastern and not by the natural-gas customers of Texas Eastern. No pressing need appears for such a condition, in view of the fact that in fixing natural-gas rates, the elements we conventionally have considered are those related to the facilities used and useful in the natural-gas business and reasonable costs related thereto. This, indeed, is an important reason for the lack of substance to the barge operators' claims of injury resulting from the operation of the Little Inch by Texas Eastern. However, the recommended condition may serve a precautionary purpose and on this basis we are able to find that it is required by the public convenience and necessity.

We have considered the various other arguments and contentions advanced by the barge operators in this case, including their claim that the Little Inch conversion project would controvert the principles of the national transportation policy as enunciated in the Transportation Act of 1940. Respecting this and such other of the barge operators' arguments and objections as are not discussed in detail or specifically disposed of herein, we find that they are without substantial support in the record or reasonable basis in law and should be denied.

CONCLUSION

In the light of the Court's decision in the City of Pittsburgh case, supra, 237 F. 2d 741, we have, in effect considered the abandonment docket in these proceedings as including the question of whether to authorize use of a portion of the Little Inch line for the transportation of clean petroleum products, notwithstanding the fact that there is no legislation requiring certification of such oil lines. In fact, the Congress has not seen fit to require persons to obtain certificates of public convenience and necessity before engaging in the pipeline transportation of petroleum products. It seems, therefore, that in the absence of legislation authorizing an administrative agency to consider the pipeline transportation of petroleum products in relation to the overall national transportation policy, our only alternative has been to consider the abandonment proceeding in the light of the provisions of the Natural Gas Act.

As is demonstrated by the antecedent portions of this opinion, we have attempted to apply to the extent possible, the same criteria that we would apply had there been two competing natural-gas companies before us applying for certificates of public convenience and necessity to render the same or substantially similar service. We have examined the many facets of Texas Eastern's proposal to convert a portion of the Little Inch line to the transportation of petroleum products and the potential effects thereof upon barge operators and have attempted to delineate clearly hereinbefore our findings with respect thereto.

The action we take, however, must be viewed in accordance with the provisions of the Natural Gas Act which is the only bench mark the Congress has laid out for us.

The primary objectives of the Natural Gas Act are to protect the public interest and the interests of the ultimate consumers of natural gas. Citations for this proposition are unecessary. In carrying out our duties in these respects, we do not feel that it is incumbent upon us under the provisions of the Natural Gas Act to require a natural-gas company to maintain in operation certain specified facilities when more economical facilites can be substituted therefor even though the interests of competitors may, to some extent, be affected by such substitution. In the light of the provisions of the Natural Gas Act we do not feel that we are required to give dominant consideration to the provisions of the antitrust laws in carrying out our duties under the Act. Cf. Pennsylvania Water & Power Co. v. Federal Power Commission, CADC, 1951, 193 F. 2d 230; affd. 343 U.S. 414. As we see it there is nothing unlawful per se about a natural-gas company engaging in the transportation of petroleum 82-172-72--23

products in competition with others engaged in the transportation of such products.

Seemingly it is the contention of the barge operators that it is our duty under the Natural Gas Act to deny the abandonment of the Little Inch line so as to prevent Texas Eastern from lawfully competing with the barge operators in the transportation of petroleum products, even though Texas Eastern proposes to substitute more economical facilities for the transportation of natural gas in interstate commerce. What the barge operators are seeking, in effect, is protection from lawful competition-protection we are not required to give competing natural-gas companies under the provisions of the Natural Gas Act. Home Gas Co. v. Federal Power Commission, CADC, 1956, 231 F. 2d 253; cert. den. 362 U.S. 831; Panhandle Eastern Pipe Line Co. v. Federal Power Commission, CADC, 1947, 169 F. 2d 881; cert. den. 335 U.S. 854; Kentucky Natural Gas Corp. v. Federal Power Commission, C.A. 6, 1947, 159 F. 2d 215.

The Commission further finds:

(1) Texas Eastern Transmission Corporation is a natural-gas company within the meaning of the Natural Gas Act, as the Commission has heretofore found. (2) The proposed facilities hereinbefore described as the "maximum" facilities in docket No. G-9784, and more fully described in opinion No. 296 and accompanying order and herein, are to be used in the transportation and sale of natural gas in interstate commerce for resale, subject to the jurisdiction of the Commission, and the construction and operation thereof by Texas Eastern are subject to the requirements of subsections (c) and (e) of Section 7 of the Natural Gas Act.

(3) Texas Eastern is able and willing properly to do the acts and to perform the service proposed, and to conform to the provisions of the Natural Gas Act, and the requirements, rules and regulations of the Commission thereunder.

(4) The pipeline facilities hereinbefore described and more fully described in opinion No. 296 and accompanying order, which Texas Eastern proposes in docket No. G-2503 to abandon insofar as its interstate operation is concerned, are subject to the jurisdiction of the Commission, and the abandonment, as proposed by Texas Eastern, is subject to the provisions of subsection (b) of Section 7 of the Natural Gas Act.

(5) Construction and operation of the maximum facilities proposed by Texas Eastern as described above, less the Hampton, Arkansas and Newton, Texas laterals, are required by the public convenience and necessity, and a certificate therefor should be issued.

(6) The proposed abandonment of the pipeline facilities hereinbefore described is permitted by the present and future public convenience and necessity, and permission and approval to abandon should be granted.

(7) Public convenience and necessity require that the general terms and conditions set forth in paragraphs (a), (b), (c) (1), (c) (2), (c) (3), (e) (4) and (c) of Section 157.20 of the Commission's Regulations under the Natural Gas Act [18 CFR 157.20] should attach to the certificate hereinafter issued and to the exercise of the rights granted thereunder.

The Commission orders:

(A) A certificate of public convenience and necessity is hereby issued authorizing Texas Eastern Transmission Corporation to construct and operate the "maximum" facilities hereinbefore described and more fully described in opinion No. 296 and accompanying order issued October 9, 1956, proposed in docket No. G-9784, as amended, including the Booth Compressor Station, and less the Hampton, Arkansas and Newton, Texas laterals.

(B) The permission and approval of the Commission for the abandonment of the facilities hereinbefore described and more fully described in opinion No. 296 and accompanying order, as set forth in the application in docket No. G-2503 as supplemented, be and it is hereby granted upon the terms and conditions of this order. Texas Eastern shall comply with the conditions set forth under paragraph (B) of our order accompanying opinion No. 282, issued June 24, 1965, in docket No. G-2503, except for subparagraph (i) thereof, which has been satisfied.

(C) As further conditions attached to the exercise of the rights granted under the certificate issued under paragraph (A):

(i) Texas Eastern shall commence construction of its said maximum facilities within sixty (60) days from the date of issuance of this order, unless otherwise ordered by the Commission for good cause shown.

(ii) The certificate issued in paragraph (A) shall be accepted in writing under oath by a responsible official of Texas Eastern within thirty (30) days from the issuance of this order.

(iii) Public convenience and necessity require that the general terms and conditions set forth in paragraphs (a), (b), (c) (1), (e) (2), (c) (3), (c) (4) and (e) of Section 157.20 of the Commission's Regulations under the National Gas Act [18 CFR 157.20] shall attach to the certificate herein issued and to the exercise of the rights granted thereunder, and that the date upon which construction of facilities authorized by this order shall be completed and in actual operation shall be fixed as December 31, 1957.

(iv) Texas Eastern shall not include in its natural-gas costs of the accounts for investment, operating costs or revenues resulting from its oil operations and transportation, and any losses suffered by Texas Eastern in its one business shall not be charged against the natural-gas operations.

(v) Texas Eastern shall, within sixty (60) days of the date of issuance of this order, file its plan, which shall be satisfactory to the Commission, for financing its facilities authorized in paragraph (A), such plan to include a statement of the extent to which the financing needs associated with these undertakings have been anticipated, through the sale of securities or otherwise, and the extent to which further financing is necessary.