Commissioner James Danly Dissent Regarding Data Collection for Analytics and Surveillance and Market-Based Rate Purposes

Commissioner James Danly Statement
August 19, 2021
Docket No. RM16-17-000

I dissent from today’s order adopting the proposal to collect additional information for the relational database.[1]  With this issuance, the Commission now requires further submissions from market-based rate sellers with upstream affiliates holding blanket authorizations under Federal Power Act (FPA) section 203(a)(2).[2]  This additional administrative burden which we now foist upon these entities is unnecessary (and therefore unjustifiable) because the information we will glean simply cannot aid us as the majority supposes.

Earlier this year, in a separate proceeding, Commissioner Chatterjee and I concurred in an order denying a petition for declaratory order filed by NextEra Energy, Inc. and a number of other utilities.  In that order, the Commission seized upon the opportunity to reiterate public utilities’ reporting obligations regarding the informational database.[3]  Although we concurred in the result of that order, we objected to inclusion of institutional investors in the relational database as a pointless regulatory burden with little to no value.[4]  Many of the objections we offered in that concurrence are equally applicable to this order.  I recite those objections in large measure here.

As today’s order recognizes, in NextEra, the Commission found that

as a result of the conditions in a section 203(a)(2) blanket authorization, institutional investors subject to a section 203(a)(2) blanket authorization lack the ability to control the utilities whose voting securities they acquire.  The Commission concluded that, because those conditions prevent institutional investors from exercising control over those utilities, utilities commonly owned by an institutional investor are not affiliates of each other under 18 CFR § 35.36(a)(9)(iv), so long as their common institutional investor owner complies with the conditions imposed as part of a section 203(a)(2) blanket authorization.[5]

The Commission thus acknowledged that, in conditioning those blanket authorizations, institutional investors were prevented from exercising control over utilities by acquiring their securities.

That determination remains true.  Under our current regime, there is little to no value in listing institutional investors as the ultimate upstream affiliate of market-based rate sellers in the relational database.  The Commission grants blanket authorizations premised on the finding that the institutional investors can exercise no control over the utilities whose securities they have purchased and that the acquisition would not adversely affect competition.[6]  The conclusion that the institutional investors cannot exercise control or influence sellers so as to affect market power is confirmed by our holding that sellers under common control of an institutional investor are not affiliates.  Indeed, it could not be otherwise.

Given those predicate determinations, I cannot understand why the Commission believes it important to include institutional investors in a database that is designed to enable the Commission to monitor the opportunity for market-based rate sellers to exercise market power.  For the same reason, I do not understand why the Commission should require change in status filings to be made whenever an institutional investor’s ownership of the seller’s voting securities crosses the 10% threshold.  To the extent that a particular institutional investor’s ownership of voting securities ever becomes relevant to the Commission because it may have violated the conditions of its authorization, that information is easily ascertainable from the quarterly informational filings we require as a condition of granting the blanket authorizations.[7]

There is a simple solution that would allow the Commission to eliminate the requirement to include institutional investors in the relational database and in change of status filings without waiving the applicability of section 35.36(a)(9)(i) of our regulations.  Section 35.36(b) provides: “The provisions of this subpart apply to all Sellers authorized, or seeking authorization, to make sales for resale of electric energy, capacity or ancillary services at market-based rates unless otherwise ordered by the Commission.”[8]  Here the Commission could have—and in my opinion should have—used this authority to order that sellers are not obligated to report institutional investors in the relational database or to make change in status filings when institutional investor holdings cross the 10% voting security threshold.  The Commission would also need to make a minor amendment to its relational database regulations to provide that when an institutional investor is the ultimate upstream affiliate, sellers should instead list the next highest upstream affiliate in the database.  For example, subsidiaries of NextEra should list NextEra as the ultimate upstream affiliate in the database if any institutional investor owns 10% or more of NextEra pursuant to a blanket authorization.

I appreciate that the Commission has acted to reduce the burden on sellers resulting from the requirement to include institutional investors in the relational database and in change-in-status filings.  But a pointless regulatory burden is a pointless regulatory burden, no matter how small.

For these reasons, I respectfully dissent.