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Exposing Myths on what the FERC Really Wants

Fortnightly Magazine - March 1 2000

required for a disposition of jurisdictional facilities to be in the public interest. (pp. 116-17.)

But now let's examine the possibility of future commission action, spelled out in Order 2000 in text immediately following the quote above:

However, in response to those who argue that the Commission has a statutory responsibility to remedy undue discrimination and anticompetitive effects ¼ we recognize that we may have to consider, in individual cases, issues that arise as to whether market power has been mitigated ¼ or whether a merger would be in the public interest, without RTO participation. (p. 145.)

Notice how the commission circumscribes its remedial authority. In the very next sentence, the Order lists only (1) the filing deadlines, (2) the obligations to participate in good faith in the collaborative process, and (3) meeting the 12 functions and characteristics as the mandatory aspects of the rule.

Further, in the section on legal authority, Order No. 2000 says,"[N]or do we propose to use the denial of market-based rate authority as a penalty for not complying with this Rule." (p. 150.)

Regarding mergers, Order 2000 says only that participation in an RTO "might be an appropriate remedy" for market power. (p. 649.)

We rest our case. A large chasm exists between the certainty of "will always" and the mere possibility of "might, if the record supports it."

- C.L.H., J.Z.R.

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