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Fortnightly Magazine - May 15 1998

was originally proposed, and as it was being implemented by NERC members when CAPT filed its motion, tagging required the penultimate wholesaler in a chain to document for the transmission providers (and, in turn, for security coordinators) every transfer of title to the power that it would receive and resell to end users. At that time (and continuing today), some transmission providers would deny schedules of applicants that failed to provide a complete chain of title tag from generator to load-serving entity. CAPT asked the FERC to order transmission providers to cease and desist from tagging in this fashion because it amounted to imposing, without FERC approval, extra-tariff terms and conditions limiting eligibility for access to jurisdictional transmission services.

Between the date of filing the CAPT motion and the date of the order, the iTIS ceased to be interim and the amount of information called for in the tagging requirements of NERC's final Transmission Information System (TIS) had been scaled back substantially. Notably, the chain of title reporting obligation of the original tag was eliminated completely. By the order date, the TIS tag was a template that asked the service applicant to supply only the following information:

1. The service start/stop dates

2. The code assigned to the purchasing/selling entity (PSE)

3. PSE contact

4. PSE 24-phone, fax and email

5. Sending control area (CA)

6. Sending CA's phone, fax and email

7. Receiving control area

8. Receiving CA's phone, fax and email

9. Transaction path, including Sending CA, transmission provider, PSE, point of receipt and point of delivery, product and OASIS identifier

10. Energy profile

11. Ramp rate (where applicable)

How FERC Got Its Way

As the FERC recognizes in the order, these 11 pieces of information are already required of a transmission applicant by sections 17.2 (firm point-to-point), 18.2 (nonfirm point-to-point), and 29.2 (network) of its pro forma open-access transmission tariff, and by 18 C.F.R. § 2.20 (1997), which each of these sections of the pro forma tariff incorporates by reference. FERC Order, slip opinion, p. 7.

Interpreted against this background, the FERC's order finds that tagging imposes no terms or conditions on a transmission applicant's eligibility for service that are not already terms and conditions of the relevant transmission provider's FERC-approved open-access transmission tariff. In other words, the extra-tariff terms and conditions of the original iTIS tagging that CAPT's motion sought to enjoin were no longer a problem with respect to NERC. Accordingly, the CAPT motion could be dismissed. Electing to ignore original tagging under the iTIS allowed FERC to avert a jurisdictional battle with NERC.

However, to ensure that NERC and the industry did not mistake its message, the FERC joined its decision on CAPT's motion with the procedurally unrelated Western Resources filing in order to inform transmission providers and NERC that they cannot do what the original tag did: No industry participant can unilaterally change or add to the terms and conditions of eligibility for open-access service under FERC-jurisdictional transmission tariffs. The Western Resources decision further informs transmission providers that they alone, and not NERC or any