...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.

(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?

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.”

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.

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.

In addition to airing her jurisdictional and standing concerns, the judge said permitting retail ratepayers to file such complaints "is at odds with promoting efficiency" because FERC could be faced with handling "potentially millions of individual complainants."

The groups, however, insisted that Cintron's position is "contrary to the plain language of the FPA," which states that "any person" has standing to file a complaint with FERC, as well as long-standing commission precedent holding that retail ratepayers have standing to challenge wholesale rates.

Citing a proceeding involving the abandoned Potomac Appalachian Transmission Highline project in which FERC found that "[a] complaint regarding a transmission rate can … be filed by any person, including an end-use customer that will pay some portion of that rate when flowed through its retail bill," the groups called Cintron's attempts to distinguish that situation from AEP's "unavailing." The judge relied on differences in the two companies' formula rate protocols to make her case, but the groups argued that "standing is a statutory right under the FPA, and whatever is said in the AEP protocol cannot overturn the statute."

As for Cintron's concerns about the regulatory burden that would be placed on FERC if retail ratepayers are allowed to challenge wholesale rates, the groups insisted that "administrative convenience is not a basis to eviscerate a statutory right." They said that "[i]n any event, this is a chimera — in the nearly 20 years since the commission issued Order 888, there has been a stream but not a deluge of … rate challenges."

Finally, among other things, the groups said the "novel viewpoint" expressed by Cintron "would reopen the … regulatory gap between federal and state jurisdiction that the FPA was designed to close."

"For consumers impacted by commission-jurisdictional transmission rates, there is no other effective remedy," the groups said.