FTC Comment Before the Federal Energy Regulatory Commission Concerning the Investigation of Public Utility Market-Based Rates and Authorizations

Before the
United States of America
Federal Energy Regulatory Commission
Investigation of Terms and Conditions 	) 	Docket Nos. EL01-118-000
Of Public Utility Market-Based Rate 	) 	and EL-01-118-001
Authorizations 	)
Comment of the
Federal Trade Commission
August 28, 2003

1 The present proposals follow public comments on earlier proposals to “condition
all new and existing market-based rate tariffs and authorizations to include provisions
prohibiting the seller from engaging in anticompetitive behavior or the exercise of market
power” and also stem from the investigation of pricing behavior during 2000 and 2001 in energy
markets in the western states (Docket No. PA02-2-000). This investigation culminated in the
FERC staff’s “Final Report on Price Manipulation in Western Markets: Fact-Finding
Investigation of Potential Manipulation of Electric and Natural Gas Prices” (March 2003)
(Western Markets Report). See also FTC Staff Comment, Docket No. EL01-118-000 (Jan. 7,
2002), available at <http://www.ftc.gov/be/v020005.htm>.
2 In a parallel proceeding (FERC Docket No. RM03-10-000), FERC proposes to
modify similarly the natural gas blanket certificates under subpart G of Part 284 of FERC’s
regulations. We believe that the same types of concerns about structurally competitive markets
and consistent use of terms in regulatory and antitrust contexts arise in that matter.
Before the
United States of America
Federal Energy Regulatory Commission
Investigation of Terms and Conditions 	) 	Docket Nos. EL01-118-000
Of Public Utility Market-Based Rate 	) 	and EL-01-118-001
Authorizations 	)
Comment of the
Federal Trade Commission
I. 	Introduction and Summary
The Federal Trade Commission (FTC or Commission) appreciates this opportunity to
present its views concerning the Federal Energy Regulatory Commission’s (FERC) proposed
revisions to market-based rate tariffs and authorizations.1 FERC proposes six behavioral rules
to safeguard against “unjust and unreasonable rates” when an electricity generator or marketer is
granted authority by FERC to charge market-based rates in wholesale electricity markets. 2
We recognize that the misconduct of some suppliers in the western energy markets in
2000 and 2001 may motivate FERC to impose additional behavioral rules on these and other
electric power marketers. Nonetheless, we urge FERC not to lose sight of the goal of developing
structurally competitive markets. Long experience has taught antitrust enforcers that competitive

2
markets that exhibit ease of entry are more likely than behavioral rules imposed on market
participants to protect consumers and result in efficient pricing, output, and investment.
The relationship between federal antitrust law and FERC’s authority to prevent unjust
and unreasonable rates prompts a number of the suggestions in this comment. Some seller
conduct could violate both the antitrust laws and FERC’s proposed rules. Other conduct could
violate FERC’s proposed rules but not the antitrust laws. The comment suggests that FERC may
wish to revise Market Behavior Rule #2, which prohibits market manipulation by sellers of
wholesale electric power, so that conduct that violates the antitrust laws also is prohibited under
this rule. FERC also may wish to use competition policy and consumer protection principles to
identify accurately conduct that does not violate the antitrust laws but nonetheless leads to unjust
and unreasonable rates. The comment suggests ways in which FERC can apply these principles
to identify such conduct. In addition, Market Behavior Rules #3 and #4, which require accurate
communications with and reporting to FERC, market monitors, and others, may not achieve the
goals FERC has articulated or may have the unintended consequence of curtailing efficient
transactions. We suggest that FERC consider building the concepts of materiality and
confidentiality into these rules.
We make these suggestions because, as written, the cited rules may chill procompetitive
behavior. Detailed rules that conflict with established norms for competitive behavior, as
defined by the antitrust laws, may distort investment, output, and pricing decisions and result in
serious adverse consequences for consumers.
The FTC is an independent administrative agency responsible for maintaining
competition and safeguarding the interests of consumers through enforcement of the antitrust and

3 FTC Staff Report: Competition and Consumer Protection Perspectives on
Electric Power Regulatory Reform (July 2000), available at
<http://www.ftc.gov/be/v000009.htm>. This report compiles previous comments that FTC Staff
had provided to various state and federal agencies.
4 FTC Staff Report: Competition and Consumer Protection Perspectives on
Electric Power Regulatory Reform, Focus on Retail Competition (Sept. 2001), available at
<http://www.ftc.gov/reports/elec/electricityreport.pdf>.
3
consumer protection laws and through competition advocacy. In the electric power industry, the
FTC often analyzes regulatory or legislative proposals that may affect competition or the
efficiency of resource allocation in addition to its review of proposed mergers involving electric
and gas utility companies. In the course of this work, as well as in antitrust research,
investigation, and litigation, the Commission applies established principles and recent
developments in economic theory and empirical analysis to competition issues. As part of its
competition advocacy mission, the FTC has issued two Staff Reports (July 2000 and September
2001) on electric power industry restructuring issues at the wholesale and retail levels. The July
2000 FTC Staff Report established a policy framework for increased competition in wholesale
and retail electric power markets.3 The September 2001 FTC Staff Report reviewed those
features of state retail competition plans that have provided benefits to consumers and those that
have not. It also provided recommendations as to whether states had sufficient authority to
implement successful retail competition programs.4 Since the September 2001 FTC Staff
Report, FTC staff has filed eight comments with FERC regarding standards of conduct for

5 FTC Staff Comment on Docket No. RM01-10-000 (Dec. 20, 2001), available at
<http://www.ftc.gov/be/v020001.htm>.
6 FTC Staff Comment on Docket No. RM02-1-000 (Dec. 21, 2001), available at
<http://www.ftc.gov/be/v020002.htm>.
7 FTC Staff Comment on Docket No. EL01-118-000 (Jan. 5, 2002), available at
<http://www.ftc.gov/be/v020005.htm>.
8 FTC Staff Comment on Docket No. RM01-12-000 et al. (Apr. 23, 2002)
available at <http://www.ftc.gov/be/v020014.pdf>.
9 FTC Staff Comments on Docket No. RM01-12-000 (Apr. 3, 2002; July 23, 2002;
Nov. 15, 2002; and June 27, 2003), available at <http://www.ftc.gov/be/advofile.htm>.
10 Letter of the Federal Trade Commission to House Commerce Committee
Chairman Thomas Bliley, Analysis of H.R. 2944 (Jan. 14, 2000), available at
<http://www.ftc.gov/be/v000002.htm>.
4
transmission providers,5 interconnection standards, 6 market-based rates, 7 costs and benefits of
Regional Transmission Organizations (RTOs),8 and various aspects of standard market design. 9
II. 	The Advantages of Creating Structurally Competitive Markets as a Remedy for
Existing Market Power
Traditional antitrust analysis recognizes that the benefits of competition are most likely to
accrue to consumers when markets operate unburdened by substantial and durable market power.
The Commission has recognized that economically practicable policies that lessen existing
market power in electric power markets by broadening product markets, expanding geographic
markets, and lowering entry barriers are likely to enhance consumer welfare. 10 In the FTC staff
comment on Standard Electricity Market Design, the staff stated:
The goal of structurally competitive electric power markets may be pursued directly
through policies that reduce concentration, ease entry impediments, and facilitate price-

11 FTC Staff Comment Docket No. RM01-12-000 (Nov. 15, 2002), § II.B, available
at <http://www.ftc.gov/be/v020022.htm>.
12 FTC Staff Comment Docket No. RM01-12-000 (July 23, 2002) at 4-6, available
at <http://www.ftc.gov/be/v020018.pdf>.
13 U.S. Dept. of Justice and Federal Trade Comm., Horizontal Merger Guidelines
(Apr. 2, 1992, as revised Apr. 8, 1997) (Horizontal Merger Guidelines).
5
responsive demand programs. If direct approaches are too costly, slow, or otherwise
unavailable, then less direct means to curtail market power, including bid caps and must
run obligations such as those proposed in the NOPR, may warrant consideration on an
interim basis. In general, the indirect approaches are less efficient and may undermine
investment incentives, thereby delaying structurally competitive markets. Consequently,
we encourage FERC and the states to emphasize direct approaches to achieving
structurally competitive electricity markets.11
We continue to believe that structurally competitive markets are generally the best remedy for
anticompetitive behavior and existing market power in wholesale electricity markets. 	We
continue to encourage FERC to give high priority to achieving structurally competitive markets
while it pursues interim measures, if any, to address findings from its investigations of market
conduct.
In addition, accurate and realistic assessments of seller market power prior to FERC’s
awarding or renewing a seller’s market-based rate authority are likely to diminish the need for
the behavioral rules proposed in this proceeding. To achieve more accurate and realistic
assessments of seller market power, FERC may wish to reexamine its methodology for awarding
market-based rates. The FTC staff has commented previously that FERC may wish to
harmonize its various tests to identify whether a seller has market power.12 In particular, the
FTC staff recommended that FERC base its market power analysis on the techniques and
approaches outlined and discussed in the Department of Justice and Federal Trade Commission
Horizontal Merger Guidelines. 13 The techniques in the Horizontal Merger Guidelines could

14 See Stephen J. Rassenti, Vernon L. Smith, and Bart J. Wilson, “Demand-Side
Bidding Will Control Market Power and Decrease the Level and Volatility of Prices,” University
of Arizona, Economic Science Laboratory (Feb. 2001). Other examples of the extensive
literature on price-responsive demand include: Steven Braithwait and Michael O’Sheasy, “RTP
Customer Demand Response,” in A. Faruqui and B.K. Eakin (eds.) Electricity Pricing in
Transition, Kluwer Academic Publishers (2002); Severin Borenstein, Michael Jaske, and Arthur
Rosenfeld, “Dynamic Pricing, Advanced Metering and Demand Response in Electricity
Markets,” University of California Energy Institute, Working Paper 105 (Oct. 2002).
15 See the invitation for retail business customer participation in the NYISO’s
Emergency Demand Response Program in the “Ask PSC” section of New York State’s website,
available at <http://www.askpsc.com/bizprograms/?view=commercial&subview=efficiency>.
6
provide a more informed and realistic analysis of existing or potential market power problems.
Moreover, price responsive demand is an aspect of electric power market restructuring
that is likely to be highly effective in making it unprofitable for sellers to raise prices above the
competitive level.14 Programs such as the NYISO’s Emergency Demand Response Program that
allow retail customers to bid load reductions as capacity reserves (i.e., offer to reduce demand
when the price of capacity reserves is high) may be a particularly appealing policy option,
because they can both increase the responsiveness of demand to price changes (thereby making
efforts to raise prices above competitive levels less profitable to suppliers) and reduce market
concentration in ancillary services markets for reserves (by turning retail electric power
customers into potential suppliers in these markets).15
III. 	Reform the Market Manipulation Rule in Light of Antitrust Usage and Experience
FERC has proposed six new behavioral rules to prevent sellers with market-based rate
authority from charging unjust and unreasonable rates. Market Behavior Rule # 2: Market
Manipulation prohibits “actions or transactions without a legitimate business purpose which

16 These five practices are: (A) Pre-arranged offsetting trades of the same product
among the same parties (“wash trades”); (B) transactions predicated on submitting false
information to transmission providers (such as submitting inaccurate load or generation data;
scheduling non-firm service as firm; or falsely designating resources that are unavailable); (C)
transactions in which an entity first creates transmission congestion and then “relieves” it; (D)
collusion with another party for the purpose of creating market prices at levels differing from
those set by market forces; and (E) bidding the output of or misrepresenting the operational
capabilities of generation facilities. 68 Fed. Reg. 40924, 40927 (July 9, 2003).
17 16 U.S.C. § 824e (2000).
7
manipulate or attempt to manipulate market prices, market conditions, or market rules for
electric energy, or result in market prices for electric energy and/or electric energy products
which do not reflect the legitimate forces of supply and demand.” FERC provides a non-
exclusive list of five practices that the general rule specifically prohibits.16
We have separated our discussion of Market Behavior Rule #2 into three parts. First, we
offer two observations about the proposed rule and identify potential conflicts between antitrust
law and the rule. To avoid these potential conflicts, FERC may wish to revise the rule so that
conduct that violates the antitrust laws also is prohibited by rule. Second, for conduct that does
not violate the antitrust laws but nonetheless leads to unjust and unreasonable rates, we offer
suggestions to describe more precisely the actions to be prohibited, based on conduct FERC
identified in the Western Markets Report using competition policy and consumer protection
insights. Third, we discuss disgorgement remedies for violations of Market Behavior Rule #2.
A. 	Two General Observations About Market Behavior Rule #2
First, we note that FERC proposes Market Behavior Rule #2 within the context of
Section 206 of the Federal Power Act (FPA), which requires FERC to assure that wholesale
electric power prices are “just and reasonable.”17 FERC has determined to rely “upon

18 68 Fed. Reg. at 40927.
19 Blue Cross Blue Shield United v. Marshfield Clinic, 65 F.3d 1406, 1413 (7th Cir.
1995), cert. denied, 516 U.S. 1184 (1996).
20 For example, in the BMI case, the Supreme Court found that the blanket copyright
licenses challenged were not per se illegal, even though they literally involved price fixing.
Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1 (1979). See generally
U.S. Dept. of Justice and Federal Trade Comm., Antitrust Guidelines for Collaborations Among
Competitors (Apr. 7, 2000) (“Competitor Collaboration Guidelines”).
8
competitive markets to establish just and reasonable rates” and has deemed it necessary that
conditions be added to public utility sellers’ tariffs “to ensure that market-based rates remain
within the zone of reasonableness required by the Federal Power Act.”18
Unlike the FPA, the antitrust laws are not a price-control statute or a public-utility or
common-carrier rate-regulation statute.19 Rather, the antitrust laws help maintain effective
competition by prohibiting conduct that unreasonably restrains trade. For example, agreements
among competitors that unreasonably restrain trade violate the antitrust laws. Antitrust law also
makes it unlawful to maintain or attempt to create a monopoly through conduct that
unreasonably excludes firms from the market or significantly impairs their ability to compete. It
is not unlawful under the antitrust laws, however, for a seller with market power to charge a
profit-maximizing price.
The determination of which agreements among competitors are anticompetitive,
however, is not always straightforward. In particular, since the late 1970s, antitrust enforcers
have become more aware that agreements among competitors may create efficiencies as well as
carry the potential for competitive harm. This insight counsels care in assessing the competitive
implications of particular agreements.20 In addition, antitrust has been leery of prohibiting
single-firm conduct that may simply represent vigorous competition, rather than anticompetitive

21 See III Areeda & Hovenkamp, Antitrust Law ¶ 630a, at 44-45 (2003).
22 In the Matter of Polygram Holding, Inc., Decca Music Group Limited, UMG
Recordings, Inc., and Universal Music & Video Distribution Corp., Docket No. 9298, Federal
Trade Commission Opinion and Final Order at 13 (July 24, 2003), available at
<http://www.ftc.gov/os/2003/07/polygramopinion.pdf> (“Three Tenors”).
23 We have the same concerns about proposed Rule #6, which states that a “Seller
shall not violate or collude with another party in actions that violate Seller’s code of conduct or
Order No. 889 standards of conduct.” FERC appears to illustrate the collusion element in the
proposed rule with the example (paragraph 35) of “a power marketer [that] used a third party to
circumvent the Commission’s prohibition on affiliate sales.” Here the cited conduct might be
more accurately characterized as an evasion of FERC’s behavioral regulations (regarding
conduct of affiliates) facilitated through arrangements with a third party, rather than as collusion
between competitors.
9
behavior.21 Over time, the courts and the FTC have refined the jurisprudence surrounding each
type of conduct based on insights gained from adjudicative experience and from developments in
economic and legal learning.22
Second, the general rule and the specific examples listed in Market Behavior Rule #2 use
antitrust-type terms that may conflict with how those terms are employed in antitrust
enforcement and, therefore, may create confusion and regulatory uncertainty for market
participants. Such uncertainty may cause firms to stop making efficient investments or entering
into procompetitive agreements that would be permissible under antitrust law.
For instance, the fourth example under the general rule prohibits “collusion with another
party for the purpose of creating market prices at levels differing from those set by market
forces.” Several elements of this example may be at odds with the criteria for enforcement of
prohibitions against unreasonable restraints of trade under the antitrust laws.23 The language in
the example does not explicitly focus on agreements between competitors, whereas antitrust
enforcement does so. One interpretation of the proposed rule might be that a transaction

24 Explicit agreements may be shown through direct evidence or through
circumstantial evidence sufficient to permit an inference of an agreement. Antitrust also
condemns vertical agreements they have anticompetitive effects.
25 The presence of “plus” factors, however, can lend to an inference of an actual (not
tacit) agreement. See VI Areeda & Hovenkamp, Antitrust Law ¶ 1416, at 101-04 (2003).
26 Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan, Inc., 203 F.3d 1028,
1043 (8th Cir. 2000).
27 See Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and
Its Practice 37 (1999).
28 Clamp-All Corp. v. Cast Iron Soil Pipe Institute, 851 F.2d 478 (1st Cir. 1988)
(Breyer, J.).
10
between a customer and a supplier that increases the market clearing price would be a prohibited
action. Although such bilateral agreements are within the purview of the antitrust laws, they are
not usually considered to restrain trade unreasonably.
The term “collusion” may be used in various ways in the antitrust context. Antitrust law
prohibits explicit agreements – i.e., collusion – between competitors that unreasonably restrain
trade.24 Antitrust law does not condemn tacit collusion that may be inferred from interdependent
or parallel conduct.25 Tacit collusion is equally consistent with competitive and anticompetitive
conduct.26 Oligopolies are characterized by interdependent behavior among firms because each
seller is large enough to affect the market by its price and output decisions; as a result, in raising
or lowering prices or output, each firm has profit incentives to take into account its competitors’
likely responses to its actions. 27 Unilateral pricing decisions by oligopolists do not constitute an
unlawful agreement, even if each firm bases its own decision on a belief that its competitors will
act similarly. 28 FERC’s use of the term “collusion” does not specify the types of agreements to
which it refers and thus may create uncertainty for industry participants (and their counsel) and

29 See Competitor Collaboration Guidelines, supra note 20, § 3.31 at 16, n. 35
(“Anticompetitive intent alone does not establish an antitrust violation, and procompetitive intent
does not preclude a violation. . . . But extrinsic evidence of intent may aid in evaluating market
power, the likelihood of anticompetitive harm, and claimed procompetitive justifications where
an agreement’s effects are otherwise ambiguous.”).
30 See Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and
Its Practice 144-45 (1999). For a discussion of the development of per se treatment of overt
collusive agreements, see W. Kip Viscusi, John M. Vernon, and Joseph E. Harrington, Jr.,
Economics of Regulation and Antitrust, Ch. 5 (MIT Press, 3d ed. 2000).
31 “Per se rules always contain a degree of arbitrariness. They are justified on the
assumption that the gains from imposition of the rule will outweigh the losses and that
significant administrative advantages will result. In other words, the potential competitive harm
plus the administrative costs of determining in what particular situations the practice may be
harmful must far outweigh the benefits that may result. If the potential benefits in the aggregate
are outweighed to this degree, then they are simply not worth identifying in individual cases.”
United States v. Container Corp. of America, 393 U.S. 333, 341 (1969) (Marshall, J., dissenting).
32 For example, in the FTC’s Detroit Auto Dealers case, the administrative
complaint charged that the respondents agreed among themselves and with others to limit
competition in the sale of new motor vehicles in the Detroit, Michigan area in violation of
11
could conflict with existing enforcement of the antitrust laws.
The example also appears to establish an intent requirement for any finding of an
anticompetitive agreement. The modern antitrust view is that antitrust enforcement against
anticompetitive agreements among competitors does not require proof of intent. 29 In particular,
naked agreements to fix prices or divide markets are generally treated as per se violations of the
antitrust laws.30 Per se treatment of such agreements between competitors rests on a
presumption that such agreements almost always harm competition. 31
The example forbids collusion only with respect to prices. The antitrust agencies have
found that agreements between competitors may harm consumers by diminishing forms of
competition in addition to price competition. Examples may include competition with regard to
capacity, quality, variety, innovation, or service.32 Agreements between competitors that raise

Section 5 of the Federal Trade Commission Act, by adopting and adhering to a schedule limiting
hours of operation for the sale or lease of motor vehicles in the Detroit area. The alleged
agreement limited weekday evening hours to Mondays and Thursdays and eliminated Saturday
hours altogether, except for occasional special sales. The Commission's Final Order, among
other provisions, prohibited the dealers from conspiring in any way to fix hours of operation.
Detroit Auto Dealers Ass'n, Inc., 111 F.T.C. 417 (1989), aff’d in part and rev’d in part, 955 F.2d
457 (6th Cir.), cert. denied, 506 U.S. 973 (1992). Charges against the respondents were resolved
in a series of settlements.
33 See Oliver Williamson, “Wage Rates as a Barrier to Entry: The Pennington Case
in Perspective,” 82 Q. J. Econ. 85 (1968). Williamson describes the economic incentives
involved in United Mine Workers v. Pennington, 381 U.S. 657 (1965). In that case, operators of
large coal mines were found to have agreed with each other and with the United Mine Workers
to exclude operators of small coal mines from the market. The key conditions for the operation
and profitability of this agreement were that uniform wage rates would prevail across all mines,
that small coal mining operations were more labor-intensive than large coal mining operations,
and that prices could be raised profitably if small coal mines left the market. Because of these
three conditions, operators of large coal mines would collectively find it advantageous to offer
higher wages than they would individually offer because an increase in wages, when applied
across all mines, would disproportionately increase the costs of their smaller rivals and either
prevent additional entry or cause the operators of small coal mines to exit. Without the
competition from small coal mines, the operators of large coal mines would be able to raise
prices by more than enough to offset the higher wages they had agreed to pay.
34 Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608, 610-11
(1985).
35 Id. at 605 n.32.
12
rivals’ costs may also harm competition.33
Another instance in which Market Behavior Rule #2 may conflict with antitrust
principles is in the use of the term “without a legitimate business purpose.” Antitrust usually
applies the term to single-firm exclusionary conduct. The standard for exclusionary conduct
articulated in the Aspen Skiing case 34 is that the conduct not only must tend to impair the
opportunities of rivals, but also must either not further competition on the merits or do so in an
unnecessarily restrictive way.35 In some instances, antitrust has asked whether an agreement had
a “legitimate business purpose” as a way of inquiring into whether the agreement has a

36 See Three Tenors, supra note 22, at 33-35.
13
procompetitive justification, as by creating efficiencies sufficient to make the market more,
rather than less, competitive. More commonly, however, antitrust jurisprudence now inquires
directly into whether and to what extent efficiencies are likely from an agreement.36
In light of these observations, we note that conduct that would violate the antitrust laws
also is likely to violate the FPA’s “just and reasonable” standard as interpreted by FERC. On the
other hand, conduct that violates the FPA’s “just and reasonable” standard may not violate the
antitrust laws. Thus, to avoid potential conflicts identified above in policing anticompetitive
behavior, FERC may wish to reaffirm in its general rule that sellers with market-based rate
authority are prohibited from engaging in conduct that would violate the antitrust laws. This
revision would prohibit conduct that violates the antitrust laws and leads to unjust and
unreasonable rates, without creating marketplace confusion. FERC also may wish to identify
those circumstances in which it will refer such anticompetitive conduct to the antitrust agencies.
In the next section we discuss how conduct that does not violate the antitrust laws, but
nonetheless may lead to unjust and unreasonable rates, may be identified more precisely based
on competition policy and consumer protection principles.
B. 	Conduct that May Not Violate the Antitrust Laws but Nonetheless
Leads to Unjust and Unreasonable Rates
As mentioned above, competition policy differentiates between unilateral and joint
conduct. In identifying conduct that leads to unjust and unreasonable rates, but may not violate
the antitrust laws, FERC may wish to differentiate between these two broad categories of action
(unilateral and joint) as it crafts appropriate rules of the road for sellers. For example, of the five

14
examples cited in the proposed rule, “paper trades,” “false trade,” and “misrepresentation”
(subsections B, C, and E) involve unilateral (single-firm) conduct, while “wash trades” and
collusion (subsections A and D) involve joint action.
FERC’s proposed general rule presumes that actions or transactions that “manipulate”
prices, conditions, or rules automatically lead to unjust and unreasonable rates, without
determining whether unjust and unreasonable rates result from the conduct. This is an open-
ended standard that may prohibit procompetitive or competitively neutral agreements.
To avoid the situation in which Market Behavior Rule #2 curtails efficient market
operation, FERC may wish to identify more accurately the specific conduct that leads to unjust
and unreasonable rates. We note that in each of the unilateral action examples (subsections B, C,
and E), an essential element of each “manipulation” includes falsehood, fraud, or
misrepresentation. Example (B) prohibits a seller from submitting false information to entities
responsible for operating the transmission network; example (C) prohibits a seller from creating
false congestion; and example (E) prohibits misrepresenting the operational capabilities of a
generation unit. Because of the significance of falsehood and deception in each example, if
FERC determines that such conduct is likely to lead to unjust and unreasonable rates, it may
wish to revise its general rule so that a seller of wholesale electricity is prohibited from falsely
representing its capabilities or scheduled trading in the relevant market.
FERC also may wish to examine the FTC’s Deception Statement for the principles that
guide an FTC determination of whether a statement is deceptive, so as to assist FERC in defining

37 The FTC’s Deception Statement is attached to Cliffdale Associates, Inc., 103
F.T.C. 110 (1984).
38 The antitrust laws prohibit, among other things, unreasonable restraints of trade
between competitors. The “rule of reason” is the touchstone for evaluating challenged conduct.
In applying the rule of reason, courts evaluate the impact of challenged behavior upon
competition, i.e., whether the restraint has anticompetitive effects by diminishing output or
increasing prices. The courts have recognized, however, that not all trade restraints require the
same degree of fact-gathering and analysis. Some restraints are so inherently and predictably
unreasonable that a court can dispense with an elaborate analysis of the restraints’
anticompetitive effects and condemn them as illegal per se.
15
false or deceptive information in the electric power markets.37 Although the Deception
Statement applies to consumer advertising, the underlying analysis of deceptive statements can
be adapted to the wholesale electric power market by changing the focus of the examination
from the consumer to the entity subject to the deception, which in this case could be the
transmission grid operator. Under the Deception Statement, a statement is considered deceptive
if it contains a representation or omission that is likely to mislead consumers acting reasonably
under the circumstances, and the representation or omission is material (i.e., is likely to affect
consumers’ decisions regarding purchase or use of a product). By analogy, a deceptive or false
statement in wholesale electricity markets may be one that contains a representation or omission
that is likely to mislead the transmission grid operator, and for which the misrepresentation is
material (i.e., is likely to affect the operator’s operation of the grid).
Likewise, in the joint conduct context, if FERC believes – based on evidence presented in
the Western Markets Report – that “wash trades” have resulted in unjust and unreasonable rates,
it should determine whether all or only some such trades are likely to have such effects.38 By
limiting its prohibitions to conduct likely to result in unjust and unreasonable rates, FERC may
be able to avoid inadvertently banning procompetitive behavior that benefits consumers.

39 Care should be taken to adjust the definition of just and reasonable rates to
account for changes in the quality or other characteristics of service. For example, collaboration
that results in a higher quality of service may benefit consumers but may also have a higher
price. This price might be higher than the previous price in nominal terms but lower on a
quality-adjusted basis.
40 Federal Trade Commission, Policy Statement on Monetary Equitable Remedies in
Competition Cases (July 2003), available at
<http://www.ftc.gov/os/2003/07/disgorgementfrn.htm>.
16
Antitrust teaches that if the conduct is not likely to result in anticompetitive effects, prohibition
of the conduct may lead to less efficient market operation. By analogy, prohibition of conduct
that does not lead to unjust and unreasonable rates may lead to less efficient market operation.39
C. 	Disgorgement for Violations of Market Behavior Rule #2
FERC proposes to order a seller to disgorge unjust profits gained through conduct
prohibited by Market Behavior Rule #2. The FTC recently released a Policy Statement on
Monetary Equitable Remedies in Competition Cases that discusses when disgorgement and other
equitable remedies are appropriate for antitrust violations.40 FERC may wish to evaluate
whether the three principles outlined in the FTC’s Policy Statement apply to FERC’s
enforcement under the FPA.
First, the Commission will seek disgorgement in competition cases only when the
violation is clear – when, based on existing precedent, a reasonable party should expect that the
challenged conduct would likely be found to be illegal. One possible application of this factor in
the context of Market Behavior Rule #2 (as reworked as noted above) might mean that conduct
not specifically prohibited in the rule would not be subject to disgorgement.
Second, the Commission must have a reasonable basis for calculating the amount of
disgorgement. Third, the Commission will consider disgorgement when it anticipates that other

41 We generally encourage use of a cost/benefit framework in evaluating alternative
regulatory approaches. 	It is difficult for a proposal to be justified within this framework if the
compliance costs have the potential to be quite large.
42 Often the incentives to undertake investment projects, invent new processes, or
introduce new products depend upon the profits that a supplier can accumulate before other
market participants emulate the first mover. Early disclosure of a firm’s plans in any of these
categories is likely to diminish incentives to carry out these projects. As a result, some projects
may no longer be sufficiently attractive to undertake. Another potential concern is that rapid
disclosure of price and quantity information to these public entities by all market participants
will result in rapid public disclosure of the price and quantity involved in a high proportion of all
individual transactions. Such rapid, inclusive disclosures in a market may facilitate monitoring
17
remedies are likely to fail to accomplish the purposes of the antitrust laws or when disgorgement
may provide important additional benefits. FERC may wish to evaluate whether these criteria
are met if it decides to order disgorgement based on violation of Market Behavior Rule #2.
IV. 	Efficacy and Efficiency Concerns About Market Behavior Rules # 3
(Communications) and # 4 (Reporting)
Market Behavior Rule #3 requires sellers to provide “complete, accurate, and factual
information, and not submit false or misleading information, or omit material information” to
FERC, market monitors, RTOs, ISOs, or similar entities. The proposed rule does not consider
the costs of providing the information or the confidential treatment of this information by the
requesting agencies. To avoid situations in which the costs of providing information exceed the
expected benefits, FERC may wish to indicate criteria that it will apply in enforcing this
proposed rule. Materiality and confidentiality are two criteria that FERC may wish to reference.
Without such limitations, we are concerned that this proposed rule could result in unwarranted
regulatory compliance costs41 or public disclosure of commercially sensitive information that
would diminish investment and innovation incentives and facilitate collusive behavior.42

of a collusive agreement and make collusion more likely in that market.
43 We assume that complete, accurate, and factual reporting to private publishers
does not necessitate disclosure of individual transaction prices and volume or, alternatively, that
such information will be held in confidence by the publisher if it is disclosed by individual
suppliers. We encourage FERC to avoid any requirement that would tend to result in rapid
disclosure of individual transaction data that could facilitate monitoring compliance with a
collusive agreement among suppliers.
44 Each firm in the market is likely to make its own cost/benefit assessment of
contributing data. If the costs of doing so rise sufficiently, one or more data contributors are
likely to cease participating.
45 Unlike a situation in which a small, random portion of transactions data may be
used with statistical confidence to report on the characteristics of all transactions, here the
sample would not be random, and estimates for the whole population of transactions might well
be biased.
46 Whether or not such discounts already exist in electricity supply contracts, they
may be advantageous to customers and may become more common in electricity supply
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Market Behavior Rule #4 requires that sellers that elect to report data used to compile
price indices “shall provide complete, accurate and factual information to any such publisher.”43
Although accurate price indices can be essential to efficient operation of commodity markets,
imposing a highly exacting standard for reporting may actually lead to less accurate (rather than
more accurate) indices. If the standard imposes high reporting costs, some firms may decide not
to submit any data to the index publishers. 44 If enough transactions are not included in a price
index, its accuracy with respect to price may suffer along with its accuracy with respect to
volume.45
In some instances, a strict standard may force one or more firms to withdraw from
reporting. For example, in some markets, fully accurate transactions prices are not known at the
time of the sale because the transaction price includes cumulative discounts that remain
unknown until the end of the year or another date in the future.46 Absent a strict requirement for

contracts in the future.
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reporting complete and accurate price data, a supplier could contribute to the accuracy of price
indices by reporting its price and volume for known transactions, its expected volume discounts,
and the volume covered by such discounts. FERC may wish to provide some leeway for
reporting best estimates of prices.
V. 	Conclusion
FERC proposes new behavioral rules to curtail anticompetitive behavior identified in its
investigation of wholesale electricity prices in western markets during 2000 and 2001. Despite
its present focus on additional behavioral rules, we encourage FERC to emphasize efforts to
create structurally competitive markets. We believe that structurally competitive markets offer a
more certain and effective remedy for existing market power than additional behavioral rules.
Efforts by FERC and the states to expand geographic markets by implementing efficient RTOs,
to remove entry impediments, and to increase the price responsiveness of demand are all
important elements in creating structurally competitive markets.
We are concerned about FERC’s use of the terms “collusion” and “legitimate business
purpose” in proposed Market Behavior Rule #2. We encourage FERC to confirm that a seller’s
violation of the antitrust laws also violates Market Behavior Rule #2. FERC also may wish to
specify that deceptive conduct can lead to unjust and unreasonable rates that violate the FPA,
even if it does not run afoul of the antitrust laws. Moreover, FERC may wish to incorporate the
concepts of materiality and confidentiality into proposed Market Behavior Rules # 3 and 4. Such
clarifications are warranted because excessively detailed rules that conflict with established

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norms for competitive behavior, as defined by the antitrust laws, may distort investment, output,
and pricing decisions and result in serious harm to consumers.
August 28, 2003