Commissioner James Danly Statement
March 24, 2022
Docket Nos. ER21-1111-005, et al.
I concur in today’s order.[1] I write to reiterate that both the filed rate doctrine and the rule against retroactive ratemaking also apply to non-rate terms and conditions in filed tariffs.[2]
I also write separately to state that no credible reading of my Fair RATES Act Statement,[3] which issued on October 20, 2021,[4] could lead one to believe that I suggested that the Commission’s last date to act occurred on any date other than October 11, 2021. The Commission’s failure to act by October 11, 2021 resulted in acceptance of the filing, including the requested October 12, 2021 effective date, by operation of law.[5] Any reading of my Fair RATES Act Statement that implies otherwise is baseless[6] and should be soundly rejected by any reviewing court.
For these reasons, I respectfully concur.
[1] See Ala. Power Co., 178 FERC ¶ 61,196 (2022).
[2] See Okla. Gas & Elec. Co. v. FERC, 11 F.4th 821, 830 & n.3 (D.C. Cir. 2021); id. at 830 (“[N]on-rate terms . . . are part of the filed rate. The statute provides no grounds for distinguishing rate and non-rate terms, but rather binds parties to the terms in the filed tariff.”); id. (“Non-rate terms within the tariff may not be changed retroactively . . . .”).
[3] See 16 U.S.C. § 824d(g)(1)(B). In October 2018, the America’s Water Infrastructure Act became law. America’s Water Infrastructure Act of 2018, Pub. L. No. 115-270, 132 Stat. 3765 (2018). That Act included provisions from the Fair Ratepayer Accountability, Transparency, and Efficiency Standards Act (the Fair RATES Act) amending Federal Power Act section 205 to treat inaction by the Commission that allows a rate change to take effect as an order for purposes of rehearing and judicial review. America’s Water Infrastructure Act § 3006.
[4] See Ala. Power Co., Commissioner James P. Danly, Fair RATES Act Statement on Southeast Energy Exchange Market, Docket Nos. ER21-1111-002, et al. (Oct. 20, 2021) (Fair RATES Act Statement).
[5] See id. P 6 (“reset the 60-day statutory clock, this time to October 11, 2021”); id. P 9 (“The . . . [last day to act] was October 11, 2021”); id. P 12 (“Commission inaction by the statutory deadline of October 11, 2021”). The requested effective date for the filings was October 12, 2021. See id. PP 6-7 (referencing requested effective date of October 12, 2021 and five month extension for such date from May 13, 2021 to October 12, 2021) & Attach. A at PP 1, 3; see also 16 U.S.C. § 824d(g)(1)(A).
[6] The Commission’s statutory action date was not extended from October 11 to October 12 as the rehearing parties contend by intentionally quoting excerpts of unrelated sentences out of context. See Rehearing Parties January 7, 2022 Request for Rehearing, at 14-15. The requested effective date was extended by five months from May 13, 2021 to October 12, 2021 due to the Commission’s deficiency letters, a key point they improperly omit. Fair RATES Act Statement at P 7.