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The Complainant is Legacy Health System, of Portland, United States of America, represented by Davis Wright Tremaine LLP, United States of America.
The Respondent is Nijat Hassanov, of Baku, Azerbaijan.
The disputed domain name <legacyhealthsystem.com> is registered with Moniker Online Services, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 7, 2008. On November 10, 2008, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On November 11, 2008, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the disputed domain name. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was December 8, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 9, 2008.
The Center appointed Ross Wilson as the sole panelist in this matter on December 22, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant operates six hospitals in the Portland, Oregon, and Vancouver, Washington metropolitan area and employs than 9,000 full-time and part-time staff. The hospital system was formed in 1989. It offers inpatient, outpatient, tertiary, trauma and hospice services to men, women and children.
The Complainant trademarks LEGACY HEALTH SYSTEM and LEGACY were registered by the USPTO in 1989 for use in connection with health care services.
The Respondent registered the disputed domain name on May 8, 2005.
- the disputed domain name was registered and is being used in bad faith as it resolves to a pay-per-click advertising website whose sole purpose is to collect click-through revenues from advertising links. The Complainant contends that this practice has routinely been found to constitute neither a bona fide offering of goods or services nor a legitimate non commercial or fair use citing the following cases: Manheim Auctions Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1044, Fresh Intellectual Properties, Inc. v. Matt Braska, WIPO Case No. D2005-0096 and Nine West Development Corporation v. Registrant /Moniker Privacy Services/Registrant : Domain Administrator, WIPO Case No. D2008-0154.
The Complainant has provided evidence that it has rights in its two US registered trademarks LEGACY HEALTH SYSTEM and LEGACY.
The disputed domain name <legacyhealthsystem.com> incorporates in full both of the Complainant's trademarks. Apart from the < .com> extension the disputed domain name is identical to the LEGACY HEALTH SYSTEM trademark. With respect to the Complainant's second trademark the disputed domain name combines the distinctive LEGACY element with the descriptive words “health system”. As held in many similar cases, the addition of descriptive words does not provide sufficient differentiation for a disputed domain name to be considered distinctive from the dominant element of a complainant's trademark. In this case the disputed domain name is confusingly similar to the Complainant's LEGACY trademark.
In view of the above, the Panel finds that the disputed domain name is identical to the Complainant's LEGACY HEALTH SYSTEM trademark and confusingly similar to the LEGACY trademark, both of which the Complainant has demonstrated rights.
Paragraph 4(c) of the Policy sets out how a Respondent can demonstrate rights to or legitimate interests in the disputed domain name. In this case, the Respondent has chosen not to file any submission or evidence to demonstrate its rights or legitimate interests in the names “legacy health systems” and “legacy”. In this situation, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Complainant makes it clear that the Respondent is not a licensee of the Complainant, has no relationship or association with Complainant and is not authorized to use the trademarks in any way.
The evidence provided by the Complainant demonstrates that the sole purpose of the disputed domain name is to resolve to pay-per-click advertising websites and collect click-through revenue from advertising links. Such use demonstrates that the Respondent has used the disputed domain name to derive a commercial benefit. There is no indication on the website that the Respondent has made a bona fide use of the disputed domain name. Similarly, there is no evidence that the Respondent is commonly known by the domain name.
The findings in the cases cited by the Complainant all refer to circumstances where the generation of click-through revenue did not constitute a bona fide offering of goods and services or a legitimate non commercial or fair use.
Based on the lack of evidence before the Panel that the Respondent has any rights or legitimate interests in the disputed domain name for the purpose of paragraph 4(a)(ii) of the Policy the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The fact that the website provides multiple links including to nursing employment, doctors, nursing and Portland, Oregon indicates that the Respondent knowingly used the Complainant's trademark and is evidence that the Respondent is unfairly and opportunistically benefiting from the goodwill associated with the Complainant's mark. In the decision in Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163, the panel found that bad faith exists where a domain name is so obviously connected with the Complainant that its very use by someone with no connection with the Complainant suggests opportunistic bad faith.
The Complainant's assertion that the bad faith domain name registration and use is evidenced by the disputed domain name resolving to pay-per-click advertising websites is well supported by the findings of the panels in the following cases cited by the Complainant: Manheim Auctions Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1044; Fresh Intellectual Properties, Inc. v. Matt Braska, WIPO Case No. D2005-0096 and Nine West Development Corporation v. Registrant /Moniker Privacy Services/Registrant : Domain Administrator, WIPO Case No. D2008-0154.
Also, the two cases Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 and Advance Magazine Publishers Inc. v. Pablo Palermao, WIPO Case No. D2008-0026 confirm that bad faith is evidenced where a respondent uses virtually the same mark as a domain name and where a respondent attempts to trade on the goodwill associated with a mark in which the complainant has rights.
On the basis of the evidence put forward by the Complainant, the Panel is satisfied that the Respondent's conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <legacyhealthsystem.com> be transferred to the Complainant.

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The respondent appeals a district court ruling modifying the parties' dissolution decree by increasing his alimony obligation from $1 to $1800 per month.
Kevin J. Visser of Moyer & Bergman, P.L.C., Cedar Rapids, for appellant.
Sherry L. Schulte of White & Johnson, P.C., Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Huitink, Streit, Vogel, and Mahan,JJ.
Respondent-appellant Benjamin J. Trickey ("B.J.")appeals a district court ruling modifying the parties' dissolution decree by increasing his alimony obligation from $1 to $1800 per month. We affirm as modified.
The marriage of B.J. and Terry Trickey was dissolved by decree on March 23, 1988. At the time, both parties were thirty-eight years old. Pursuant to stipulation, B.J. agreed to pay Terry $800 per month in alimony for a period of three years and then one dollar per year thereafter. He was also ordered to pay a property settlement of $2000 per month for thirty-six months. In addition, B.J. agreed to pay two lump-sum property settlements of $100,000 on September 1, 1991 and $50,000 on September 1, 1997.
B.J. owns a bowling business which was experiencing financial difficulties at the time of the decree. However, it was expected the business would host a bowling tournament in 1991 which would yield a substantial profit from which the first lump sum payment would be made.1 The tournament was held, but the entire expected revenue was never realized. The business continued to face financial problems through 1995.
Initially, B.J. met his alimony, child support, and $2000 periodic property settlement obligations. However, in 1991, B.J. notified Terry he would not pay the $100,000 due on September 1. Terry subsequently allowed B.J. to meet his property settlement obligation through monthly installments of $2,800 per month. By 1993, however, B.J.'s financial situation had become desperate. Attempting to ease the impact of his lump sum property settlement obligations, he offered Terry one of the two bowling alleys he owned. She refused. B.J. also offered to convert the remainder of the property settlement to alimony, a non-dischargeable obligation. B.J. warned he might file bankruptcy and that the conversion would afford her greater protection.
From 1988 to 1996, Terry, a certified teacher, unsuccessfully sought full time teaching employment. Her employment was limited to substitute teaching and short term contracting. Her inability to find full time teaching positions was apparently due in large part to factors beyond her control, such as her age and lack of a teaching specialty. She applied for several other sales and clerical positions, but was routinely turned down. She rejected opportunities that offered only minimum wage income.
On March 14, 1996, Terry filed a modification petition. On subsequent hearing she claimed the bankruptcy resulting in B.J.'s improved financial condition, coupled with her continued unemployment constituted a substantial change in circumstances justifying an increase in alimony. The trial court agreed and ordered B.J. to pay Terry alimony of $1800 per month for five years.
B.J. now appeals. He claims the district court erred in considering the bankruptcy a substantial change in circumstances justifying an increased alimony award. He further contends the district court cannot reinstate the discharged property settlement through the guise of a modified alimony award. B.J. also argues Terry's failure to procure a full time teaching job is not a substantial change in circumstances, since she was also unemployed at the time of the 1988 decree.
Modification of dissolution decree actions are tried in equity and review is thus de novo. Iowa R. App. P. 4; In re Marriage of Guyer, 522 N.W.2d 818, 820 (Iowa 1994). At the same time, we recognize the value of listening to and observing the parties and witnesses. Iowa R. App. P. 14(f)(7). Consequently, we give weight to the findings of the trial court, although they are not binding. In re Marriage of Ruter, 564 N.W.2d 849, 851 (Iowa App. 1997).
II. Bankruptcy as Basis for Modification of Alimony.
Property division and alimony should be considered together in evaluating their individual sufficiency. See In re Marriage of Tzortzoudakis, 507 N.W.2d 183 (Iowa App. 1993).However, once set, absent fraud, duress, coercion, mistake, or other similar grounds which would support modification of an ordinary judgment, property settlements in dissolution decrees are not subject to modification. In re Marriage of Johnson, 299N.W.2d 466, 468 (Iowa 1980).
B.J. contends this modification action seeks to modify a property settlement, not an alimony award. The real issue is whether failure to pay a property settlement due to bankruptcy can be rectified through a modification of an alimony award.
Our consideration of this issue requires examination of federal bankruptcy law and Iowa dissolution and domestic relations law. Normally, state family law is not preempted by federal law. See Rose v. Rose, 481 U.S. 619, 625, 107 S. Ct.2029, 2033, 95 L.Ed.2d 599 (1987) (quoting In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890)). However, state law will be preempted if it "conflicts with the express terms of federal law" and "sufficiently injure[s] the objectives of [a] federal program." Hisquierdo v. Hisquierdo, 439 U.S. 572, 583, 99 S.Ct. 802, 809, 59 L.Ed.2d1(1979). To be overridden, the state law "must do 'major damage' to 'clear and substantial' federal interests." Rose v. Rose, 481 U.S. at 625, 107 S.Ct. at 2033, 95 L.Ed.2d 599 (quoting Hisquierdo v. Hisquierdo, 439 U.S. at 581, 99 S.Ct. at 808, 59 L.Ed.2d 1(1979)).
A. The Federal Law Question. Bankruptcy attempts to provide the debtor a "fresh start" in life, opportunity to begin anew "unhampered by the pressure and discouragement of preexisting debt." Perez v. Campbell, 402U.S. 637, 648, 91 S.Ct. 1704, 1710, 29 L.Ed.2d 233 (1971). Property settlements in marriage dissolution cases are generally considered dischargeable debts. See In re Morel, 983 F.2d104, 104-05 (8th Cir. 1992). Such discharged settlements are generally not recoverable by the spouse to whom the payments were originally due.See 11 U.S.C. �524 ( 1998); Siragusa v. Siragusa, 27 F.3d 406, 408 (9th Cir.1994) (attempts to collect a discharged property settlement violate the section 524 standing injunction against collection of a discharged debt). However, the bankruptcy code also contains public policy exceptions which are given priority over the debtor's interest in a fresh start. For example, payments for alimony, maintenance, or support are not disagreeable in bankruptcy. See 11 U.S.C. �523(a)(5) (1998).
Thus, in determining whether to permit a modification of alimony following the discharge of a property settlement in bankruptcy we must first ascertain the purpose of the modification. If the modification is essentially a reinstatement of the property settlement under the guise of alimony, the modification violates section 524 and is not permitted. See Siragusa v. Siragusa, 27 F.3d at 408. Mere attempts to "end run" around a bankruptcy discharge are not allowed. See Brabham v. Brabham, 184 B.R. 476, 487(Bankr. D. S.C. 1995). However, if the alimony modification merely takes into account the fact that one spouse would no longer receive the property settlement payments upon which the original support award was premised and the discharge results in changed financial circumstances,then modification will not violate federal bankruptcy law. Id.; see also In re Danley, 14 B.R. 493,495(Bankr. D. N.M. 1981).
(1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice; (4) the change in circumstances must be permanent or continuous rather than temporary; (5)the change in financial conditions must be substantial; and (6) the change in circumstances must not have been within the contemplation of the thai court when the original decree was entered.
In re Marriage of Cooper, 524 N.W.2d 504, 506(Iowa App. 1994) (citing In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983) (citations omitted)).
No Iowa case has expressly stated alimony may be adjusted to compensate for a discharged property settlement. However, in In re Marriage of Geil, the Iowa Supreme Court removed from a dissolution decree a provision that increased spousal support to a wife in the event the husband discharged his property settlement obligations through bankruptcy. In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa1993). The court's rationale was that such a provision inappropriately prejudged the wife's right to a modification. "[E]ntitlement to a modification turns on proof of a substantial change in circumstances. Future events will determine the parties' relative rights in this regard." Id. (citations omitted).
III. Modifying Terry's Alimony in Light of B.J.'s Bankruptcy.
When interpreting dissolution decrees, we look to the intent of the trial court as gathered from the decree and other proper evidence. See In re Marriage of Ruter, 564 N.W.2d at 851.Extrinsic evidence may be considered "not to show the language means something different than what is said in the instrument [decree]involved, but to show what is meant by what is said." Id. (quoting Peters v. Peters, 214 N.W.2d 151, 157 (Iowa 1974)).
Terry testified during the modification hearing the anticipated lump sum payments were to derive from tournament revenues and the consequent increased economic value of the bowling business that would follow. Terry now argues that if the parties had understood future property divisions were contingent upon the success of the bowling business, then this expectancy would have been written into their stipulation. She implies that in its absence, the lump sum payments were unrelated to the success of the bowling business and the tournament in 1991.
We disagree that what was contemplated would necessarily have been reduced to writing. We are concerned with the apparently inconsistent positions argued by Terry and are inclined to give greater weight to her hearing testimony. This testimony offers a more credible reading of the dissolution decree.
Moreover, because of the timing of the payments, we find it was within the reasonable contemplation of the trial court that the payments were contingent on the success of the tournament and the consequent improved financial status of the business. Financial success of a business is often speculative, especially when looking three to eight years into the future of an already struggling business. It is only reasonable to conclude the court was aware of this fact when it entered the dissolution decree.
Therefore, the discharge of the property settlement obligations through bankruptcy provides no basis to modify the original alimony award in this case. There has not been a substantial change in circumstances outside of what was reasonably contemplated by the trial court at the time the original decree was entered. The effects of the bankruptcy should not have been considered by the trial court. Because we determine the modification on bankruptcy grounds is not appropriate under state law in this case, we need not consider whether the modification violates federal bankruptcy law.
IV. Prolonged Unemployment as Basis for Modification of Alimony.
B.J. next contends Terry's inability to find full time teaching employment is not a substantial change in circumstances warranting alimony modification. Terry has diligently sought employment as a school teacher. She is respected by her peers. She has sufficient training to get a job as a teacher, but because of factors beyond her control has been unable to do so. Her inability to find more than short term and substitute teacher work appears to be no fault of her own. This is not a situation where self-inflicted problems would prevent modification of a dissolution decree. See, e.g., In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App. 1987).
The dissolution court's original award of $800 per month for three years was apparently intended to be rehabilitative. Because of the short duration of the original award, it is highly unlikely the court envisioned Terry would have such great difficulty in securing a teaching job. At age forty-six she still has not been able to secure a full time teaching position, and we are not persuaded she will be able to gainfully re-enter the job market without additional rehabilitation. These facts demonstrate a change in employment status commensurate with that envisioned in Iowa Code section 598.21(8).
B.J. contends the amount of alimony awarded is inequitable. The modification order cited both Terry's inability to find work and the discharged property settlement as grounds for imposing the $1800 per month award.5 As we have already explained, the trial court should not have considered the bankruptcy in modifying the decree. However, in light of Terry's employment status, some additional alimony is warranted. We therefore reduce the trial court's award of $1800 per month for five years to $800 per month for five years. We decline to award attorney fees on appeal.
Costs on appeal are assessed one half to each party.
1The specific facts on this issue are in dispute. Terry testified during the modification hearing only the1991 payment was expected to be derived from the tournament. B.J. argues on appeal both the 1991 and 1997 payments would derive from the tournament. After reviewing the record, we find the 1991 payment was directly connected to the 1991 tournament The money for the 1997 payment appears to have been anticipated in light of the business's expected improved financial condition following the tournament.
2There is a dispute as to how much of the property settlement was actually paid before B.J. filed bankruptcy. This conflict need not be resolved in light of our decision today.
3Other states have also found bankruptcy discharge of a property settlement may be grounds for modification of an alimony award. See Siragusa v. Siragusa, 843 P.2d807, 813 (Nev. 1992) (ruling trial court did not err in modifying husband's alimony obligation where court properly considered discharged obligation as a "changed circumstance" justifying modification in that the discharge changed both husband's and wife's financial circumstances, and where the modification of alimony did not merely re-create debt discharged under federal bankruptcy laws); Coakley v Coakley, 400 N.W.2d436, 440 (Minn. Ct. App. 1987) (court has authority to modify alimony where a property award to the dependent spouse is discharged in a bankruptcy proceeding of the payor spouse and where it is shown a substantial change of circumstances has occurred that makes the original order unreasonable and unfair and the trial court's determination is supported by findings consistent with the state's alimony modification statute); see also Richardson v. Richardson, 868 P.2d 259 (Wyo. 1994); Eckert v. Eckert, 424 N.W.2d 759 (Wis. Ct. App. 1988).
4Despite B.J.'s request, we refrain from discussing the court's power to reinstate a dormant alimony award. The record reveals that despite the significant reduction of alimony after three years from $800 to $1 and despite Terry's failure to make the annual payment of one dollar, there nevertheless exists an ongoing obligation to pay support of one dollar. Thus, despite appellee's arguments to the contrary, this case is properly viewed as an action to modify current obligations rather than an action to reinstate terminated obligations. We refuse to find $1to be a de minimis obligation equivalent for all practical purposes to a terminated obligation.
5In fact, it appears bankruptcy was the court's primary basis for modifying the alimony The court found B.J.'s bankruptcy had discharged $109,000of the $150,000 lump sum property settlement. The court ultimately granted Terry $108,000 ($1800 per month for sixty months).

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PENNSYLVANIA POWER CO. v. F. P. C.
(a) The fact that petitioner is a licensee and subject to regulation as such under Part I does not preclude its regulation under Part II as a public utility engaged in interstate commerce. Pp. 418-419.
(b) The Commission having found on substantial evidence that the states were "unable to agree" on the services to be rendered and rates to be charged, within the meaning of 20, petitioner is also subject to regulation under Part I. P. 419.
2. Two power companies have hydroelectric plants on the Susquehanna River and a third operates steam-electric plants in Maryland. Under a contract between them, a complete integration and pooling of power producing and transmitting facilities has been achieved and power flows from Maryland into Pennsylvania and vice versa, depending upon the flow of water in the Susquehanna River. The Federal Power Commission found that the combined operations of the system are completely interstate in character, notwithstanding the fact that at some particular times transactions may involve energy never crossing a state boundary. Held: The Federal Power Commission has complete authority to regulate sales at wholesale of all of this commingled power. Pp. 419-420.
3. In private litigation, the entire contract was held unenforceable because certain of its provisions violated the federal antitrust laws and the corporation laws of Pennsylvania. Subsequently, [343 U.S. 414, 415] the Federal Power Commission issued an order fixing petitioner's rates, which had the effect of requiring a continuation of the integration and pooling of the power producing and transmitting facilities of the three companies. Held: The order is valid. Pp. 421-424.
(a) Petitioner's duty to continue its coordinated operations with the Maryland company springs from the Commission's statutory authority, not from the law of private contracts. Pp. 421-422.
(b) The Act gives the Commission ample authority to order these companies to continue their long-existing operational "practice" of integrating their power output; and in so doing the Commission was furthering the expressly declared policy of the Act. Pp. 422-424.
4. Petitioner has presented nothing to show that the end result of the rate reduction ordered by the Commission is unjust or unreasonable. P. 424.
89 U.S. App. D.C. 235, 193 F.2d 230, affirmed.
The Federal Power Commission found the rates charged by petitioner for the sale of electric power at wholesale in interstate commerce unreasonable and ordered a reduction. The Court of Appeals affirmed. 89 U.S. App. D.C. 235, 193 F.2d 230. This Court granted certiorari. 342 U.S. 931 . Affirmed, p. 424.
[ Footnote * ] Together with No. 429, Pennsylvania Public Utility Commission v. Federal Power Commission, also on certiorari to the same court.
Wilkie Bushby argued the cause for the Pennsylvania Water & Power Co. et al., petitioners in No. 428. With him on the brief were Randall J. LeBoeuf, Jr., James Piper and Raymond Sparks.
William J. Grove argued the cause for the Pennsylvania Public Utility Commission, petitioner in No. 429. With him on the brief was Thomas M. Kerrigan.
Alfred P. Ramsey argued the cause for the Consolidated Gas Electric Light & Power Co., respondent in No. 428. With him on the brief was G. Kenneth Reiblich.
Charles D. Harris argued the cause and filed a brief for the Public Service Commission of Maryland, respondent in No. 428.
In 1944 the Maryland Public Service Commission, the Mayor and Council of the City of Baltimore, the Baltimore County Commissioners, and several private purchasers of electric power decided to ask the Federal Power Commission for help. They requested the Commission to investigate allegedly "excessive rates" the Pennsylvania Water & Power Company (Penn Water) 1 was charging Consolidated Gas Electric Light and Power Company of Baltimore (Consolidated). The Maryland interests wanted the Federal Power Commission to reduce these charges so that the state commission could lower Consolidated's rates to its Maryland customers. The federal Commission held many months of extensive hearings and found that Penn Water had charged its customers almost three times what it should have in 1946. In that year it had a net operating income of $3,477,408, as contrasted with $1,300,672 which the Commission found would have been a fair return (5 1/4%) on a fair rate base ($24,774,-712), allowing Penn Water "about 8.64% for common stock and surplus, which is adequate." 2 The Commission [343 U.S. 414, 417] ordered Penn Water to file a new schedule of rates and charges to bring about the reductions required.
In subsequent orders the Commission denied Penn Water's applications for rehearing, rejected as insufficient new rate schedules filed by Penn Water, and itself prescribed the rate schedules which Penn Water here seeks to avoid. On review the Court of Appeals gave full consideration to Penn Water's multitudinous challenges and approved the Commission's action, one Judge dissenting. 89 U.S. App. D.C. 235, 193 F.2d 230.
(1) Does the fact that Penn Water is a licensee under Part I of the Federal Power Act, 4 and therefore subject to regulation under that Part, preclude its regulation under Part II of the Act as a public utility engaged in interstate commerce?
(2) Assuming that Penn Water can be subjected to regulation under both Parts of the Act, were the Commission and the Court of Appeals correct in holding that all of Penn Water's sales at wholesale were "in interstate Commerce" within the meaning of Part II of the Act?
(3) Does the Commission's rate reduction action compel the continuance of or is it improperly based [343 U.S. 414, 418] upon contractual agreements between Penn Water and Consolidated which Penn Water cannot carry out without violating the federal antitrust laws or the laws of Pennsylvania forbidding surrender by Pennsylvania corporations of their corporate independence?
Although Penn Water is the type of "public utility" subject to regulation under Part II of the Act, it argues that since it is subject to regulation under Part I as a licensee, it cannot be regulated under Part II as a public utility. We cannot agree. With some express exceptions not here relevant, the language of Part II of the Act makes all "public utilities" subject to the regulation it prescribes. No reason has been advanced which could possibly justify a judicial exception to this statutory command. A major purpose of the whole Act is to protect power consumers against excessive prices. 5 Part I leaves regulation to the states under some circumstances. But, under 20 of Part I the Federal Government is to protect the consumer if a state regulatory body does not exist or the "States are unable to agree . . . on the services to be rendered or on the rates or charges of payment therefor . . . ." Part II proceeds on the assumption that regulation of public utilities transmitting and selling power at wholesale in interstate commerce is a matter which must be accomplished by the Federal Government. Part II therefore provides for a more expansive federal regulation than that authorized under Part I. It would hinder, not help, the Power Act's program if [343 U.S. 414, 419] we should impliedly exempt Part I licensees from the more expansive Part II regulation. It may be possible that some future cases will develop minor inconsistencies in the administration of the two Parts. Today's case, however, is not such a one. We hold that Penn Water is subject to regulation under Part II of the Act. It is also subject to Part I regulation since the Commission found on substantial evidence, as the court below held, that the States were "unable to agree" within the meaning of 20 of Part I of the Act.
It is contended that some of Penn Water's sales at wholesale were not "in interstate commerce" and therefore were not subject to federal regulation under Part II. This contention refers to sales made by Penn Water in Pennsylvania to Pennsylvania customers. These are alleged to include about 83% of Pennsylvania generated power. Because of the following circumstances we agree with the Commission and the Court of Appeals that these sales were "in interstate commerce."
"The central fact disclosed by the record about Penn Water's sales in Pennsylvania is that they are not sales of the output of Penn Water's own plant, but sales of output of the integrated and coordinated interstate electric system of which Penn Water's facilities are an integral part. . . .
"In this manner energy crossing the State boundary, with other system energy, is used to fulfill system requirements. There result times when system energy generated in Pennsylvania is used, mixed or unmixed, in meeting system requirements in Maryland. Similarly, there are occasions when system energy from Maryland is used, mixed or unmixed, in meeting system requirements in Pennsylvania. Energy flows in, across, and out of the system transmission network as the needs of the interconnected members develop from minute to minute and day to day.
"It is accordingly evident that the operations of the unified system enterprise are completely interstate in character, notwithstanding the fact that system energy transactions at some particular times may involve energy never crossing the State boundary." 8 F. P. C. 1, 12, 15.
We need not now decide the question much argued here concerning what, if any, power the Commission has to rely on or to compel parties to carry out private contracts which would otherwise be illegal; the Commission has not attempted to exercise such power in this case. It is true that Penn Water must continue to do some of the things it used to do in compliance with the Penn Water-Consolidated contract. For under the present schedules prescribed by the Commission's order Penn Water must continue to buy, sell, and transmit power in the same coordinated manner in which it and Consolidated have been functioning for more than twenty years. But the Commission's order, as construed by the Commission, by the Court of Appeals and by us, neither expressly nor impliedly requires Penn Water to yield to any contractual terms subjecting it to the control of Consolidated. In the highly unlikely event that Penn Water's managerial [343 U.S. 414, 422] freedom is ever threatened by such an order, it will be time enough to consider its validity. To the extent that Penn Water is being controlled, it is by the Commission, acting under statutory authority, not by Consolidated, acting under the authority of private contract terms "legalized" by the Commission. The duty of Penn Water to continue its coordinated operations with Consolidated springs from the Commission's authority, not from the law of private contracts.
Nor has the Commission premised any of its findings upon the assumed existence and continuation of this contract. Penn Water first made this contention to the Commission in seeking a rehearing of the Commission's order directing a reduction in its rates. At that time the Commission fully re-examined its former opinion, findings and orders, modified some and reaffirmed and strengthened others, and expressly stated that the validity of its order was not dependent upon the legality of the contract. It said: "If there are questions as to legality of the foundation contracts which are in litigation, as respondents' application for rehearing indicates, the validity of our order is not dependent upon the decision of those questions." 8 F. P. C. 170, 175. We agree with the Court of Appeals that neither the order nor the findings were premised on the continuation of the Penn Water-Consolidated contract.
"For the purpose of assuring an abundant supply of electric energy throughout the United States with the greatest possible economy and with regard to the proper utilization and conservation of natural resources, the Commission is empowered and directed to divide the country into regional districts for the voluntary interconnection and coordination of facilities for the generation, transmission, and sale of electric energy, . . . ."
The Commission was further directed in that section to "promote and encourage" such interconnection and coordination. Under certain circumstances 202 (b) authorizes the Commission to compel interconnection and coordination in the public interest, and to "prescribe the terms and conditions of the arrangement to be made between the persons affected by any such order, including the apportionment of cost between them and the compensation or reimbursement reasonably due to any of them."
If Penn Water wishes to discontinue some or all of the services it has rendered for the past twenty years, the Act, as the Commission pointed out, opens up a way provided Penn Water can prove that its wishes are consistent with the public interest. Shortly after Part II of the Power Act was passed in 1935, Penn Water, as required by 205 (c), filed with the Commission the contract here attacked and then designated by the Commission as "Penn Water's Federal Power Commission Rate Schedule No. 1." Section 205 (d) provides that "no change shall be made by any public utility in any such . . . service [343 U.S. 414, 424] . . . or contract relating thereto, except after thirty days' notice to the Commission and to the public." Here instead of following the procedure for changing existing services and practices - a procedure which the Congress has authorized and which the Commission has supplemented by rules of its own - the company has rather tried to utilize a violation of the Sherman Act so as to nullify a rate-reduction order.
Nothing whatever has been presented by Penn Water to show that the end result of this rate reduction is unjust or unreasonable. Cf. Power Comm'n v. Hope Gas Co., 320 U.S. 591, 603 .
[ Footnote 1 ] Penn Water, as used in this opinion, refers to both Pennsylvania Water & Power Company and its wholly owned affiliate, Susquehanna Transmission Company of Maryland.
[ Footnote 2 ] There was evidence before the Commission that from 1936 through 1945 Penn Water's dividends on its common stock had never been less than 25% of the cash paid in on the stock.
[ Footnote 3 ] 342 U.S. 931 .
[ Footnote 4 ] 41 Stat. 1063, 49 Stat. 838, 16 U.S.C. 791a et seq.
[ Footnote 5 ] Section 20 of Part I provides that "the rates charged and the service rendered . . . shall be reasonable, nondiscriminatory, and just to the customer . . . ." Section 205 (a) of Part II provides that "All rates and charges . . . shall be just and reasonable . . . ."
[ Footnote 6 ] See also Safe Harbor Water Power Corp. v. Federal Power Commission, 179 F.2d 179, affirming 5 F. P. C. 221.
[ Footnote 7 ] Pennsylvania W. & P. Co. v. Consolidated Gas, E. L. & P. Co., 184 F.2d 552. See also Consolidated Gas, E. L. & P. Co. v. Pennsylvania W. & P. Co., 194 F.2d 89.
We start here with the exploitation of the public through an unholy alliance between two public utility companies - Penn Water and Consolidated. That alliance [343 U.S. 414, 425] has been condemned by the Court of Appeals for the Fourth Circuit. See 184 F.2d 552; 194 F.2d 89. The alliance was illegal because it violated the Sherman Act. It was an arrangement that permitted Penn Water to be operated as though it were a department of Consolidated. All competition between the two companies was destroyed, as evidenced by the fact that in 1948 Consolidated vetoed a steam electric generating plant to be built by Penn Water at Holtwood, Pennsylvania. What Penn Water may do, the revenues it receives, the costs it will incur are largely determined by Consolidated under these illegal contracts.
The Commission in its opinion on rehearing said, "If there are questions as to the legality of the foundation contracts which are in litigation, as respondents' application for rehearing indicates, the validity of our order is not dependent upon the decision of those questions. In our opinion and order we took care to leave the continuation of the operation of the integrated and interconnected system in full effect, merely changing the rates, . . . ." (Italics added.) 8 F. P. C. 170, 175. The Commission has accordingly approved the unholy alliance. It has allowed Consolidated to continue to manage Penn Water as though the latter were its alter ego. It is therefore disingenuous for the Court to say that hereafter Penn Water is subject to control by the Commission, not by Consolidated, and that the Commission did not premise any of its findings on the assumed existence and continuation of the illegal contracts. * No matter how vehement our denial, the truth is that the Commission has laced Penn Water to Consolidated under a management [343 U.S. 414, 426] contract that leaves Penn Water no initiative of private management.
Of course the Commission has authority under 202 of the Federal Power Act to promote and at times compel interconnection and coordination of the facilities of public utility companies. But I know of no power in the Commission that authorizes it to place one company on the back of another company, to merge and consolidate companies as it chooses, or to give the management of one company a veto power over the management of a competitor. Those are practices which the Sherman Act condemns, and which nothing in the Federal Power Act sanctions.

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