On January 29, 2019, FERC rejected the New England Power Pool Participants Committee’s (“NEPOOL”) proposed revisions to its Second Restated NEPOOL Agreement (“NEPOOL Agreement”) that would have disqualified members of the press from being eligible to become NEPOOL members. NEPOOL argued that the proposed revisions (“NEPOOL Press Amendments”) were necessary because allowing members of the press as NEPOOL members would undermine the effectiveness of the NEPOOL stakeholder process. FERC rejected the revisions in part because, according to FERC, NEPOOL did not show that the revisions were just and reasonable and not unduly discriminatory or preferential.
NEPOOL is a private association of approximately 480 market participants and other stakeholders in the ISO New England Inc. (“ISO-NE”) footprint. The purpose of NEPOOL, as set out in the NEPOOL Agreement, is generally to provide guidance to ISO-NE, the system operator and Regional Transmission Organization for the New England area. As relevant here, the NEPOOL Agreement sets out various types of member categories as well as a process to evaluate applicants for membership.
On August 13, 2018, NEPOOL filed the proposed NEPOOL Press Amendments to prevent press from becoming NEPOOL members or from being designated as a representative of a NEPOOL member. Among other things, NEPOOL argued that the NEPOOL Press Amendments were intended to be limited to individuals who worked in a reporting capacity for a press organization but were not meant to include the press organization itself, which could have representatives attend such meetings, provided that such representatives did not work in a reporting capacity for a press organization. NEPOOL also noted that its Principal Committee Bylaws and Standard Conditions had been revised to prohibit members from making publicly available any statements or distributed information coming from NEPOOL meetings.
Various market participants, advocacy organizations, and press outlets intervened and filed comments and protests—among them, RTO Insider LLC (“RTO Insider”), a publication that reports on organized markets. RTO Insider and other protesters alleged that NEPOOL’s prohibition of members of the press was unduly discriminatory against: (1) smaller entities who rely on the press for news on NEPOOL meetings and who are otherwise unable to attend meetings; (2) potential new entrants to NEPOOL who did not yet have an established presence in New England, as required to become a member; and (3) members of the press who would otherwise be eligible. The complaint further alleged that the NEPOOL Press Amendments were applied in a discriminatory manner because they would prevent members of the press from providing reporting services similar to those which were regularly provided by consultants to NEPOOL members. Finally, RTO Insider claimed that the NEPOOL Press Amendments violated the openness and transparency requirements of Order No. 890.
NEPOOL responded that the NEPOOL Press Amendments were not discriminatory. NEPOOL argued that smaller entities who were unable to attend the meetings would still have access to the meeting materials, because NEPOOL regularly posted meeting minutes and upcoming topics of discussion on its website. NEPOOL also claimed that potential new entrants to NEPOOL were not discriminated against because NEPOOL’s policies recognize efforts of joining the New England market as being sufficient for membership, and therefore the new entrants would not necessarily need an established presence in New England. NEPOOL further answered that its disparate treatment of the press when compared to consultants was justified and not unduly discriminatory, as members of the press and consultants are not similarly situated. Finally, NEPOOL responded that it was not legally responsible for Order No. 890, because that order applies to transmission providers, and ISO-NE is the relevant transmission provider with independence from NEPOOL.
In rejecting the NEPOOL Press Amendments, FERC first found that it had jurisdiction because NEPOOL’s rules with respect to membership would directly affect Commission-jurisdictional rates. FERC then found that NEPOOL did not show that the NEPOOL Press Amendments were just and reasonable and not unduly discriminatory or preferential because the prohibitions would deny NEPOOL membership to members of the press who would otherwise be eligible for NEPOOL membership. According to FERC, the record did not show that allowing representatives of the press would inhibit NEPOOL’s operations or undermine the stakeholder deliberations. Finally, FERC noted that the revised Principal Committee Bylaws and Standard Conditions already prohibited NEPOOL members from reporting on deliberations, and NEPOOL did not demonstrate that the NEPOOL Press Amendments would further advance NEPOOL’s aim for candid deliberation in the stakeholder process in a manner distinct from the revised Principal Committee Bylaws and Standard Conditions.
FERC’s order rejecting the NEPOOL Press Amendments can be found here.