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Enron Mail |
PRIVILEGED AND CONFIDENTIAL
ATTORNEY CLIENT PRIVILEGE ATTORNEY WORK PRODUCT Sue, I noticed Hoecker's statement too. I do not, however, believe that he is breaking new legal ground here, although the reference to Section 309 is (I believe) the first time in these cases that FERC or any of the individual Commissioners cited specifically to this section of the FPA as possible authority for ordering retroactive refunds prior to the 10/2/00 "refund effective date." (I have attached Hoecker's opinion; the reference to Section 309 is on page 11.) Section 309 is the provision of the FPA that grants FERC authority to take action "necessary and proper" to carry out the other substantive provisions of the Act, such as ensuring "just and reasonable" rates under Section 206 of the Federal Power Act; however, the courts have interpreted Sec. 309 as not expanding FERC's substantive authority otherwise granted under other provisions of the Act; it only provides FERC with authority as necessary for it to fill in the "missing blanks" in the substantive provisions of the Act, such as Sec. 206.) Several years ago, FERC ordered retroactive refunds in a Washington Water Power case where the utility had violated its tariff. Here, Hoecker is simply suggesting that FERC could do the same if it turns out that any seller violated the ISO's or PX's tariff last summer by engaging in "collusion, predatory pricing, or unlawful manipulation of prices." As long as EPMI followed the ISO's and PX's market rules last summer, I see nothing in Hoecker's opinion that undermines our view that the filed rate doctrine prevents refunds of all amounts collected in accordance with the market rules prior to 10/2/00; i.e., in the absence of a violation of the tariff or FPA, nothing in Hoecker's opinion suggests that Sec. 309 modifies the prohibition of Sec. 206 against retroactive refunds prior to the refund effective date (10/2/00). Ron <<< <Susan.J.Mara@enron.com< 01/08/01 02:23PM <<< Dan and/or Ron, Hoecker is quoted here as saying (p.2) that FERC has all the authority it needs to "disgorge" profits under Section 309 of the FPA. What are your thoughts? Is this the first time that section has been mentioned? Sue ----- Forwarded by Susan J Mara/NA/Enron on 01/08/2001 10:49 AM ----- US Publishing <season@wizar To: "RT Reader" <season@wizard.net< d.net< cc: Subject: Restructuring Today, Monday 01/08/2001 January 8, 2001 08:19 AM Please respond to season (see attached file: rt010108.pdf) Thank you, Season Hawksley US Publishing 1-800-486-8201 www.restructuringtoday.com season@restructuringtoday.com (See attached file: rt010108.pdf) - 0136365.01
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