On October 24, 2019, FERC denied Harbor Cogeneration Company, LLC’s (“Harbor”) complaint alleging that Southern California Edison Company (“SoCal Edison”) misclassified certain interconnection facilities contrary to FERC’s Order No. 2003 and violated SoCal Edison’s Transmission Owner Tariff (“TO Tariff”) in directly assigning the facility costs to Harbor without FERC “approval.” FERC denied the complaint and rejected Harbor’s request for refunds, reasoning that the charges constituted valid filed rates notwithstanding that FERC did not use the word “approve” in its delegated letter orders, and that, therefore, the charges were lawfully imposed regardless of any alleged conflicts with FERC interconnection pricing policies.
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On October 17, 2019, FERC denied Public Citizen, Inc.’s (“Public Citizen”) complaint alleging that PJM Interconnection, L.L.C. (“PJM”) recovered improper campaign contributions and lobbying expenses through its filed rate and failed to disclose its spending on political activity. In doing so, FERC concluded that PJM could recover the expenses in question through its rates because they represent an educational, outreach, or informational function essential to PJM’s core operations and because PJM determined that such expenditures are in the collective best interest of PJM’s stakeholders.
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On October 17, 2019, FERC issued an order establishing an investigation under Federal Power Act Section 206 into whether ISO New England Inc. (“ISO-NE”), PJM Interconnection, L.L.C. (“PJM”), and Southwest Power Pool, Inc. (“SPP”) (collectively, “Responding RTOs”) may be inconsistently or more expansively implementing Order No. 1000’s immediate need reliability project exemption, which allows Responding RTOs to establish immediate need reliability projects exempt from Order No. 1000’s regional transmission planning competition requirements. In the order, FERC established proceedings related to its concern, and directed the Responding RTOs to provide responses to certain questions regarding the implementation of the exemption.
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On October 8, 2019, FERC accepted ISO New England Inc.’s (“ISO-NE”) public and private versions of a filing containing the de-list bids (“De-List Bids”) and substation auction test prices (“Test Prices”) for the fourteenth Forward Capacity Auction (“FCA 14”), to be held in February 2020 and to become effective August 27, 2019. In the process, FERC also granted ISO-NE’s requested waiver of FERC’s regulations requiring parties requesting privileged treatment of their filings to provide a copy of such non-public documents to intervenors who execute a protective agreement.
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On September 30, 2019, President Donald Trump announced his intent to nominate James P. Danly for Commissioner of FERC. If confirmed by the Senate, Mr. Danly would fill the seat vacated by the passing of former Chairman Kevin McIntyre for a term to expire on June 30, 2023, resulting in three Republican Commissioners and one Democratic Commissioner.
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On September 19, 2019, FERC granted a petition for declaratory order by the New England Ratepayers Association (“New England Ratepayers”), which asked FERC to find that a New Hampshire statute, Senate Bill 365 (“SB 365”), mandating a purchase price for wholesale sales of certain biomass and waste generators in the state, is preempted by the Federal Power Act (“FPA”) and violates section 210 of the Public Utility Regulatory Policies Act of 1978 (“PURPA”).
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On September 19, 2019, FERC concurrently issued two orders granting in part separate complaints filed by American Electric Power Service Corporation (“AEP”) and the City of Prescott, Arkansas (“Prescott”) finding that, to the extent loads pseudo-tied from Midcontinent Independent System Operator, Inc. (“MISO”) to Southwest Power Pool, Inc. (“SPP”) are subject to overlapping or duplicative congestion charges by both MISO and SPP, then such charges are unjust, unreasonable, unduly discriminatory, or preferential.  On the same day, FERC also established briefing procedures (“Briefing Order”) related to the complaint orders to further investigate issues concerning potentially unjust, unreasonable, and unduly discriminatory tariff provisions, contract provisions, and/or practices that result in overlapping and/or duplicative congestion charges being imposed on pseudo-tie transactions between MISO and SPP.
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Summary of NOPR

On September 19, 2019, the Federal Energy Regulatory Commission (FERC) issued a Notice of Proposed Rulemaking (NOPR) proposing to revise its regulations implementing Sections 201 and 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA) in light of changes in the energy industry since 1978.[1]
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On September 4, 2019, the North American Electric Reliability Corporation (“NERC”) published a Lessons Learned report (“Report”) analyzing a March 5, 2019 cybersecurity incident that caused brief communications outages across several states.  NERC also provided guidance on how to avoid the firewall firmware vulnerabilities that made the cybersecurity incident possible.
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On August 22, 2019, FERC dismissed as premature Alternative Transmission Inc.’s (“ATI”) petition for declaratory order (“Petition”) asking FERC to declare that ATI’s alternative transmission facilities and services are subject to FERC’s jurisdiction and that ATI, as the owner and operator of the facilities, will be a public utility under the Federal Power Act (“FPA”).
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