Commissioner Clements Dissent Regarding Tampa Electric Company

Docket Nos. ER23-323-000 et al

I dissent from this Order’s acceptance of the Tampa Electric and Duke Florida OATT Filings and Joinder Agreements, for reasons I have articulated in prior dissents and statements concerning orders effectuating SEEM.[1]  Most significantly, the OATT filings at issue in this order suffer from the exact same deficiencies that rendered incorporation of NFEETS into the existing SEEM Members’ tariffs unjust and unreasonable and unduly discriminatory.

As I explained in my dissent to the Commission’s November 8 order accepting similar tariff provisions for four of SEEM’s existing Members, these tariff provisions violate Order No. 888 because they restrict access to a transmission service.[2]  NFEETS is only available to SEEM participants, and participation in SEEM is not open.  Rather, a prospective participant must, among other things, execute enabling agreements with three counterparties who are already SEEM participants, and obtain the countersignature of the Participant Agreement by the SEEM Agent, who is controlled by an Operating Committee composed of SEEM Members.  As I said before, “[i]t is difficult to surmise a more direct and problematic barrier to open access than granting a subset of market participants veto power over whether others may access a market platform that allocates transmission service.”[3]

The Joinder Agreements and OATT filings are also deficient because they do not conform with the Commission’s requirements for loose power pools, including the requirement to have a pool-wide OATT, and that such pools’ “membership provision[s] must allow any bulk power market participant to join, regardless of the type of entity, affiliation, or geographic location.”[4]  As I said before, SEEM meets Order No. 888-A’s definition of a loose power pool because it provides access to NFEETS, which is a “special transmission arrangement.”[5]  NFEETS is a service not otherwise available under relevant Participants’ OATTs: $0/MWh transmission service with no associated Schedule 1 or Schedule 2 ancillary service charges, and financial losses only.

Furthermore, even were the arrangement at issue not a loose power pool, the filings should also be rejected because they violate the Commission’s regulations enshrined in 18 C.F.R. § 35.28(c)(3), which require the filing of a joint OATT under these circumstances.  By executing the Joinder Agreements, Tampa Electric and Duke Florida are plainly entering into a “multi-lateral trading arrangement or agreement that contains transmission rates, terms, or conditions.”[6]  Waiver is not warranted, as a Joint OATT would provide access to NFEETS on an open, non-discriminatory basis, contrary to the arrangement Tampa Electric and Duke Florida have provided for in their individual OATTs.  As I explained in my dissent to the November 8, 2021 Order, a joint OATT would provide for practical differences from the NFEETS arrangements each individual utility has provided, as it would provide for open access throughout the pooling arrangement.[7]  It would have to either include or not include Tennessee Valley Authority (TVA), requiring TVA to choose whether to voluntarily join into an OATT that they are not required to file themselves, or else refrain from joining SEEM and experiencing its benefits.  This choice, like the Commission’s reciprocity provision, does not mandate filing of an OATT by an unregulated transmitting utility, but induces voluntary assumption of comparable responsibilities by regulated entities in exchange for benefits of integration.  Either outcome (i.e., TVA’s participation or lack thereof) would be substantively quite different from the result dictated here, as TVA currently has no OATT for NFEETS on file with the Commission.

For these reasons, I respectfully dissent.