FPL Group, Inc. & Subsidiaries - Page 212

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            duty.’”  Id. at 7379, 99-1 USTC par. at 87,037 (quoting 1                                   
            Restatement, Contracts 2d, sec. 1 (1981); Black’s Law Dictionary                            
            322 (6th ed. 1990)).  The District Court then explained:                                    
                        A tariff is “a public document setting forth                                    
                  services of a common carrier being offered, rates and                                 
                  charges with respect to services and governing rules,                                 
                  regulations and practices relating to those services.”                                
                  Black’s Law Dict. 6th ed. (1990) at 1456-57.  * * *                                   
                        Tariffs set forth a description of the services                                 
                  that a particular regulated public utility provides,                                  
                  including the prices that customers may be charged for                                
                  these services.  Tariffs are reviewed and may be                                      
                  challenged by the regulating authority and consumers.                                 
                  Once effective, tariffs bind the customer and the                                     
                  utility to the tariffs [sic] terms.  * * *                                            
            Id. at 7381, 99-1 USTC par. 50,119, at 87,039.  The court looked                            
            at the broad terms of the tariffs and concluded that the tariffs                            
            were not TRA section 204(a)(3) service or supply contracts.  The                            
            court reasoned as follows:                                                                  
                        First, the court does not find that the tariffs                                 
                  are contracts under the normal definition of that term.                               
                  However, even accepting arguendo that the tariffs are                                 
                  contracts, the court finds that these tariffs are not                                 
                  the type of contracts Congress contemplated under the                                 
                  ITC.  The tariffs are descriptions of services offered                                
                  and prices to be charged.  They are terminable at will                                
                  by the customers and * * * [the taxpayer] can modify                                  
                  them by filing a new tariff.  The regulating                                          
                  authorities can revoke the certifications and levy                                    
                  fines.  The tariffs are merely the rules with which                                   
                  * * * [the taxpayer] must conform if it chooses to                                    
                  conduct business in the particular jurisdiction.  * * *                               
                  [The taxpayer] may decide that it does not agree with                                 
                  the terms and may decide not [to] apply to provide its                                
                  service in a particular jurisdiction.  It would not be                                
                  bound to do so.  None of the tariffs require the                                      
                  purchase of property.  None of the tariffs or related                                 
                  documents alone or together identify the property to                                  
                  the “contracts” or necessitate the purchase of the                                    





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