FERC Seeks Comments on Potential Changes to Review of Mergers and Acquisitions

The Federal Energy Regulatory Commission (“FERC” or “Commission”) has asked for comments on procedures established for its review of mergers and acquisitions pursuant to section 203 of the Federal Power Act (“FPA”). In a Notice of Inquiry (“NOI”) issued on September 22, 2016, the Commission explained that it is seeking to “harmonize” its analysis of its 203 transactions with its market-based rate analysis under section 205 of the FPA.

Among other things, the FERC regulations do not require a utility seeking to engage in a transaction for which its authorization is required under Section 203 of the FPA to submit a horizontal Competitive Analysis Screen if pre-merger business transactions between the merging entities are shown to be non-existent or de minimis. Currently, FERC accepts representations from an applicant that the proposed transaction’s effect on horizontal competition is de minimis if the combined share of post-transaction installed capacity in the relevant geographic market will be relatively small or if the increase in an applicant’s post-transaction installed capacity is relatively small. However, the FERC is considering the development of a more precise definition or test of what is de minimis in determining when a full Competitive Analysis Screen is unnecessary. Accordingly, the NOI seeks comment on whether a bright line market share threshold should be established to determine whether a transaction’s impact can be determined to be de minimis and, if so, how that threshold should be calculated. The NOI also asks for comments on how FERC should analyze so called “serial de minimis” transactions in which an entity makes incremental acquisitions of generating capacity that cumulatively could lead to market power, but where no individual transaction raises a competitive concern.

In addition, the Commission has asked for comments on the potential benefits of expanding FERC’s section 203 analysis to include both a pivotal supplier screen and a market share analysis, similar to the preliminary screens used to evaluate requests for market-based rate authorization, to assess whether the merged entity would have the potential ability to exercise horizontal market power after the transaction has been consummated. The FERC has also asked for comments on whether, if it does so, the pivotal supplier analysis and the market share analysis used to evaluate mergers under section 203 of the FPA should be different from the pivotal supplier screen and the market share analysis used to evaluate market-based rate applications under section 205 of the FPA.

The NOI also addresses the Commission’s potential modification on how it accounts for control of capacity under long-term power purchase agreements (“PPAs”) in its horizontal market power analysis. Currently, if a purchasing applicant entered into a long-term firm PPA to acquire the output of a generating facility, the Commission has generally considered the generation capacity of that facility to be attributed to the purchasing utility’s pre-acquisition market share. If the entity is proposing to acquire ownership of that generating facility, such transactions would be considered to have no adverse effect on competition because there would be no change in the amount of generating capacity controlled by the acquiring entity. However, FERC is concerned about changes in market concentration after the PPA has expired and seeks comments on whether it should use “alternative methodologies” in its review of a section 203 application to account for the capacity associated with long-term firm PPAs in order to increase the accuracy of its market power analyses. For example, the Commission is considering whether to require the applicant to submit a delivered price test analysis showing certain HHI impacts and/or requiring applicants to submit a detailed explanation as to why the PPA’s capacity should be attributed to the purchaser.

Lastly, the NOI asks for comments on whether applicants should submit consultant reports that are prepared for submission to the Department of Justice and/or the Federal Trade Commission. The Commission believes that such documents could be “useful” for additional information such as the relevant geographic market definition or anticipated unit retirements. The Commission has also inquired about potential changes to its regulations governing the grant of blanket authorization for certain types of transactions under section 203 of the FPA.

The NOI is set forth in Modifidcations to Commission Requirements for Review of Transactions under Section 203 of the Federal Power Act and Market-Based Rate Applications under Section 205 of the Federal Power Act, Docket No. RM16-21-000, 156 FERC ¶ 61,214 (2016). Comments on the NOI are due 60 days from the date of publication of the NOI in the Federal Register.