...the Commission concludes that, as courts have recognized, retail customers may file complaints and protest transmission rates and wholesale sales rates before the Commission. Moreover, allowing retail customers to challenge such rates does not violate principles of federalism or interfere with states’ rights.
The settlement judge in a formal challenge proceeding involving a subsidiary of investor owned utility AEP had submitted what are known as "Certified Questions" to the Commission on Oct. 13. A certified question is intended to seek the Commission's consideration and disposition of "any question arising in the proceeding, including any question of law, policy, or procedure
." The Commission had 30 days to answer the questions posed, otherwise they would revert to the judge who posed them for decision. The questions posed were:
(1) Shouldn’t section 306 of the Federal Power Act (FPA) be interpreted
in pari materia with section 201 of the FPA? FPA section 201 gives the Commission jurisdiction over wholesale interstate rates and interstate transmission; therefore, retail ratepayers would not have the right to file complaints against wholesale rates.
(2) Wouldn’t an expansive interpretation of section 306 of the FPA (allowing retail ratepayers or end users to file complaints against interstate wholesale rates) violate the delicate balance of federalism; in other words, by giving complaint authority to retail rate customers, is the Commission interfering with states’ rights by asserting jurisdiction over retail rates?
The judge had recommended that the Commission:
answer the questions as follows:
(1) “retail ratepayers are not permitted to bring an FPA section 205 complaint against wholesale sellers of electricity[;]” and (2) a different interpretation (i.e., allowing such retail ratepayer complaints) “would interfere with state jurisdiction over retail rates.”
The Commission didn't see it that way, and yesterday they issued an Order that explained to the judge:
Complaints may be filed under sections 206 and/or 306 of the FPA, 16 U.S.C. §§ 824e, 825e (2012). While section 205(e) of the FPA refers to “complaints,” 16 U.S.C. § 824d(e) (2012), the Commission commonly refers to these filings as protests. See 18 C.F.R. § 385.211 (2015).
The plain language of the FPA and the Commission’s implementing regulations allow broad participation in proceedings before the Commission. Specifically,
section 306 of the FPA explicitly authorizes “[a]ny person” to file a complaint with
the Commission. The Commission’s regulations are to a similar effect. For example, Rule 206(a) of the Commission’s Rules of Practice and Procedures provides that “[a]ny person may file a complaint seeking Commission action against any other person alleged to be in contravention or violation of any statute, rule, order, or other law administered by the Commission or for any other alleged wrong over which the Commission may have jurisdiction.
Ms. Peine, an intervenor in this proceeding, is contesting the SWEPCO/AEP transmission formula rate inputs, and thus rates for transmission of electric energy in interstate commerce, which is within the Commission’s exclusive jurisdiction under Part II of the FPA. These transmission inputs, i.e., costs, flow through to Ms. Peine’s retail electric bill. Stated another way, Ms. Peine is an “end-use customer that will pay . . . some portion of that [transmission] rate when flowed through [her] retail bill.” Thus, by challenging the transmission formula rate inputs, Ms. Peine has alleged injury in fact that can only be addressed by the Commission. Under these facts, Ms. Peine is permitted to file a protest or a complaint and to participate in this proceeding by intervening.
This outcome is consistent with federalism. Section 201 of the FPA recognizes the authority of the states over retail sales and facilities used in “local distribution.” Ms. Peine’s formal challenges, however, go to the transmission formula rate inputs identified in the SWEPCO/AEP 2013 and 2014 Annual Updates. Ms. Peine’s claims, therefore, go to the transmission of electric energy in interstate commerce and not to local distribution
Moreover, this issue is not a matter of first impression, as both the courts and the Commission have concluded previously that protecting consumers is one of the Commission’s primary responsibilities.
...the relevant definition of “interested parties” under the SWEPCO/AEP Protocols is not the version that was filed in 2007, but rather the version that was in effect when Ms. Peine filed her formal challenges under the Protocols, and that version did not include the examples that the Settlement Judge construed as limiting the definition of interested parties to exclude Ms. Peine. Moreover, we disagree with the Settlement Judge’s interpretation of the parenthetical phrase in the earlier version of the SWEPCO/AEP Protocols. The parenthetical phrase “(e.g., Transmission customers and affected state and federal regulatory authorities)” provided examples of categories of interested parties, and should not be read as exhaustive. This parenthetical language would not preclude an end-use customer, like Ms. Peine, who will pay a portion of the transmission rate in her retail bill, from challenging the inputs to the SWEPCO/AEP transmission formula rate.
Lastly, as to the administrative efficiency concerns raised by the Settlement Judge and AEP, we note that the Commission’s Rules of Practice and Procedure provide appropriate measures to streamline Commission proceedings.
So, the judge made a complete mess of a whole bunch of law in her rush to deny standing to a ratepayer. She also doesn't know the difference between "e.g." and "i.e."
And AEP and the Judge need to kwitcherbitchin about how terribly hard and unfair it is to utilities to have their rates examined by those who pay them. Did they expect that the Commission was going to do away with annual reviews of formula rate inputs altogether? There's no way to limit participation. It's all in or nothing. And the Commission just can't legally go with shutting down rate transparency.
Perhaps there's also a lesson here for AEP, who did a whole bunch of whining
about how burdensome and costly customer reviews of wholesale transmission could be as an excuse to escape rate review altogether. AEP has been down this road before as one of the parent companies involved in the PATH
decision the Commission cited over and over in yesterday's Order. Shame on you, AEP! If someone suggested that you could steal from your grandmother and get away with it, would you do it? Even though you know full well stealing from Granny is wrong? I thought AEP was supposed to "do the right thing?"
Here's a little advice from your own CEO to apply the next time you see an opportunity to do something that you know is wrong in order to take unfair advantage over someone who appears to be weaker than you:
I urge you to make the concepts described in this book a regular point of reference for the manner in which you carry out your work and the treatment of others.
Interested parties ask for information and clarification.
Y'all want to know what I think about the PJM - MD PSC thing? Yeah, I know, but first we're going to take a little side trip into another, less publicized, decision handed down yesterday. Why? Schadenfreude. And it makes me laugh!This turned up on a news feed.
FirstEnergy Corp. was handed a loss in federal court on Monday after a judge agreed to dismiss a complaint alleging that a Pennsylvania Public Utility Commission decision preventing the company from charging customers for $230 million worth of electricity lost during transmission ran afoul of federal law.
U.S. District Court Judge James Gardner dismissed the complaint — which challenged a 2010 PUC decision that found that so-called line losses were properly characterized as a cost of power generation that could not be recouped through additional transmission...
Want to read the rest? Get a subscription.Or I'll summarize for you, because I used FirstEnergy's legal whining in this case in my FERC complaint last year. FirstEnergy lost in that instance too.The Pennsylvania PUC denied recovery of electricity loss charges they categorized as generation charges. FirstEnergy insisted they were transmission line loss charges under FERC's jurisdiction, and therefore the PA PUC was forbidden to do anything other than pass them through to customers unscathed because the PUC does not have jurisdiction over transmission charges.Meanwhile, FirstEnergy was using its other puppet hand to tell FERC that transmission charges of its PATH subsidiary were state jurisdictional and that challengers had no standing to pursue them under FERC's jurisdiction.So, FirstEnergy lost their argument at FERC. And then they lost their argument at the PA PUC. Looks like FirstEnergy is wrong about everything.
Maybe they can take it out of Tony's paycheck... for the next 10 years.Ha hahahahahahahahahaaaaa!
Last week, PATH held its "Open Meeting" to discuss its 2012 transmission revenue requirement true up
and answer questions from interested parties. Well, at least that's what the meeting notice said...
However, PATH couldn't (or wouldn't) answer questions, instead PATH made crap up. Randy's never going to learn, is he?
Emboldened by a question from one participant about the cost of legal counsel to defend the formal challenges, Randy answered a question about how PATH-Allegheny could have possibly had 5.1 full-time employees on an abandoned project in 2012 by telling everyone that "most" of that time was spent answering information requests about its formula rate filings.
Let's see, Randy, 5.1 full-time employees at 2080 hours each equals 10,608 hours spent answering 270 individual questions, "most" of which PATH refused to answer because they were alleged to be harassing, oppressive, annoying and burdensome. That equals 39.28 hours per question, including those where a refusal to answer was merely copied and pasted into PATH's response. That's nearly a work week. It took PATH one full work week to answer each question?
Stop making crap up when you're talking to accountants, okay?
And when given the opportunity to answer questions informally over the phone during the Open Meeting and save all those work hours in 2013? PATH refused and asked interested parties to submit written information requests.
We were right. About everything.
That is all.
Keryn and Ali filed a third Formal Challenge
to PATH's rates at FERC today. The previous two Challenges, which were granted in part and set for settlement and hearing by FERC
last fall, covered PATH's spending in 2009 and 2010. The Challenge filed today covers PATH's 2011 expenses.
Remember, the project wasn't put into abeyance until Feb. 28, 2011, and then PATH had the rest of the year to wind down its unneeded project and wallow in the financial and logistical mess it had made.
The total of this third challenge is $4.4M, and when added to the $5.7M set for hearing in the previous challenges, the amount challenged totals more than $10 million dollars. What could you have done instead with that $10M?The Challengers ask for the Commission to grant the Challenge and consolidate it with the existing Challenges, which were consolidated with PATH's abandonment.We do hope you enjoyed your April Fool's day as much as we did...
What was it I said last week? It's going to get worse, much worse?Tammy "something extra" has now listed all but one of PATH's River's Edge properties in Loudoun County for sale
. Here's how much these deals will cost you, assuming PATH receives full list price for the properties (which is never going to happen).PATH purchased this property in February 2009 for $689,000, 98% of Loudoun County's assessed fair market value at that time. It's on sale today for only $630,000.PATH purchased this property in April of 2009 for $418,000,
102% of Loudoun County's assessed fair market value at that time. It's on sale today for only $400,000.PATH purchased this property in April of 2009 for $910,000, 110
% of Loudoun County's assessed fair market value at that time. It's on sale today for only $735,900.And the big, big loser is this property that PATH purchased in March 2009 for $1,175,000,
246% of Loudoun County's assessed fair market value at that time. It's on sale today for only $459,000.Looks like Loudoun County's assessor was a lot more accurate about fair market values than PATH's appraiser back in 2009. But yet PATH expects ratepayers to pay the difference between purchase and sale price and make the company whole.
Right now, the difference between PATH's purchase prices in River's Edge and their current list prices amounts to $1,021,300. That's over a million dollars that ratepayers stand to lose on PATH's unnecessary and premature "investment" in real estate, and there's still one PATH-owned River's Edge property that has yet to hit the market, for which PATH paid 123% of market value in 2009. Ouchies, little ratepayers, ouchies!!!Let's take a look back at PATH's antics in River's Edge. Now PATH adds insult to injury of these homeowners and dumps a whole bunch of real estate in their neighborhood at bargain basement prices, which is going to have a significant effect on their own home value and equity.
PATH -- the gift that just keeps on giving.And PATH is so not done yet... they've still got to unload those substation properties they purchased for millions more than fair market value. Get out your wallet, little ratepayer...
PATH properties.... get yer PATH properties... in the market for some dirt-cheap but poorly maintained real estate, or maybe some completely useless land with a burned out trailer or falling down shack? PATH's real estate agent can help you with that, and she "offers something extra!" I can't imagine what that "something extra" might be, but I'm sorta frightened by the offer.PATH went ahead and listed some of its property for sale, despite the Federal Energy Regulatory Commission's November 30, 2012 Order that set the disposal of property for hearing:
"Because PATH has not completed the sale and transfers of land and other assets, we cannot determine based on the record whether self-dealing or cross-subsidization will occur as a result of these future transfers to affiliates, and whether the proposed prices for sales to third parties are reasonable. As part of the hearing and settlement proceedings, we therefore direct parties to consider the reasonableness of such transfers and sales, including whether future transfers and sales of real property should be reported in periodic reports that identify the parties, date and price of each transaction. Parties in the hearing and settlement proceedings may also consider whether the formula rate should be modified to include such information, which would allow review of the asset sales and transfers under the formula rate annual update process."So, how "reasonable" are PATH's "fair market value" sale prices compared to "fair market value" amounts PATH spent purchasing each property?PATH purchased this property for $50,000 in April of 2010. It's on sale today for only $9,000!PATH purchased this property for $64,000 in April of 2009. It's on sale today for only $12,000!PATH purchased this property for $307,185 in March of 2009. It's on sale today for only $229,900!
Let's add up the difference between PATH's purchase price and PATH's sale price, because that is the amount PATH wants YOU to pay for its little unnecessary and overly generous property buying spree: $170,285! Even if PATH sells these properties at list, that's how much of a loss PATH expects ratepayers to absorb for just these three properties. And it's going to get worse, much worse.Bargain basement prices for unneeded properties - get yer worthless PATH properties today - and if you find out what Tammy's "something extra" is, do let us know.
Read PATH's Answer to Alison Haverty's complaint
. PATH has now "invited" us to this meeting, although they still insist we're not "interested parties." They also want FERC to dismiss the complaint as moot. But I would guess that Alison may feel differently.PATH's little game of trying to intimidate consumers
has backfired. They have no defense. Last year, FERC tossed out all the precedent PATH (mis)used in earlier filings as support for their contention that consumers are not "interested parties."
Looks like the breakfast meeting on my patio will go on July 18 at 10:00 a.m. as planned. Please submit your basis for eligibility to breathe my air and drink my coffee no later than the night before the meeting. ;-)
As stipulated in its federal Formula Rate that allows PATH to recover the cost of their project from over 60 million ratepayers in 13 states and the District of Columbia, PATH is obligated by certain rules crafted to provide rate transparency. These obligations are stipulated in PATH's PJM OATT Tariff Protocols, Attachment H-19B.One of PATH's obligations is to hold an "Open Meeting" among interested parties after the filing of each yearly Actual Transmission Revenue Requirement and Projected Transmission Revenue Requirement.On June 1, PATH filed their ATRR for 2011. This filing compares the actual expenditures to PATH's estimate collected during 2011, and produces the actual rate consumers pay. As required by the Protocols, PATH posted an announcement of the meeting. As directed in the notice, several interested parties (as defined in the Protocols) submitted their RSVP for the meeting.Compare the tone of PATH's Notice of Open Meeting to that of another company who is following the exact same rule in its own Formula Rate Protocols. While PATH's meeting is held only over the telephone, Dominion's meeting is held both at their facility and over the telephone, for those who don't want to travel to Richmond. Dominion asks for 4 days notice of participant's attendance, while PATH demands you RSVP 5 days in advance, or you will not be permitted to "attend" and will not be provided the call-in information that Dominion freely provides in its Notice. Paranoid much, PATH?As if the Frau Farbissina tone of PATH's Notice isn't bad enough already, PATH sent the following email notice to certain interested parties, who had sent in their RSVPs weeks earlier, on June 24:"
The open meeting conference call that Potomac-Appalachian Transmission Highline, LLC ("PATH") will hold on July 18, 2012, to explain and clarify its Annual Update is to provide Interested Parties an opportunity to seek information and clarification concerning the Annual Update. Under Section I.H of the Protocols, an "Interested Party" means "An entity that is or may become a customer taking transmission service under [the PJM Interconnection, L.L.C. Open Access Transmission Tariff], a state public utility commission or state consumer advocate agency in Maryland, Pennsylvania, Virginia, West Virginia, Delaware, New Jersey or the District of Columbia, or any entity having standing under Section 206 of the Federal Power Act."
It is not clear that you meet the definition of Interested Party under the Protocols. Please provide a response to this email by June 19, 2012
stating the basis for your status as an "Interested Party" under the Protocols."PATH has yet to respond to any of the parties who tried (in vain, judging from PATH's impossible deadline) to provide the required information. PATH is erecting additional hurdles for certain interested parties by requiring them to plead their case to PATH. PATH has appointed itself adjudicator of consumers' rights to participate in the setting of rates that they are required to pay. PATH's behavior is especially egregious in light of FERC's findings in PATH's request to change the definition of "interested party" in its Protocols last year. As certain parties contended in that case, PATH's proposal to change the definition was a not-so-cleverly disguised attempt to exclude certain parties who have participated in the review of PATH's Formula Rate and filed Challenges in the past.
Because PATH has been caught with its hand in the cookie jar and has no logical defense, they simply seek to exclude parties who may take notice and challenge ongoing fraud.Interested party Alison Haverty has apparently grown tired of PATH's heavy-handed attempts to disenfranchise consumers a
nd filed a Complaint against PATH
at FERC (Docket No. EL12-79). PATH has 8 days to answer Alison's complaint.UPDATE: FERC has issued a Notice of Complaint
setting a very short intervention, comment, protest and answer deadline. All filings are due by 5:00 p.m. July 5. If you want to participate, you'd best get crackin'. It looks like FERC wants to get this over with well before the July 18 meeting.