FERC Filings
ELECTRIC INDUSTRY DISPUTE RESOLUTION WORKING GROUP RECOMMENDATIONS AND PROPOSED PROCEDURES FOR DISPUTE RESOLUTION
SUMMARY
The Electric Industry Dispute Resolution Working Group (Working Group) believes that Section 206 of the Federal Power Act (FPA), as presently implemented through Commission procedures, is not well suited to resolving the commercial disputes likely to arise as a result of implementation of the Commission’s pro-competitive policies. Traditionally, Section 206 complaint procedures were primarily limited to resolving allegations that filed rates, terms and conditions of service, or practices, were unjust and unreasonable, unduly discriminatory or preferential. Procedures under FPA Section 206 may not be available for use against some customers of jurisdictional utilities. In addition, Section 206 procedures rely too heavily on formal litigation, which often makes the process too slow to be effective in a commercial context. Finally, the Commission’s resources are already strained, and it appears unlikely that the Commission can efficiently process an increasing number of such commercial disputes and also increase the speed with which it resolves them. For these reasons, the Working Group believes that the Commission should implement new dispute resolution procedures that provide flexible, expeditious and fair procedures for the kinds of disputes now emerging in the industry, while preserving those aspects of the current system that should be retained for traditional disputes.
The Working Group thus recommends that the Commission adopt a comprehensive reform of the process through which disputes are resolved that reflects the needs of a commercial marketplace. The process that the Working Group recommends for adoption includes the following:
The parties may agree at any time to Alternative Dispute Resolution, including binding arbitration, of commercial disputes and issues that do not involve challenges to the justness and reasonableness of the rates, terms and conditions of filed contracts, tariffs or other rate schedules.
The disputing parties may initiate unilateral or bilateral contacts with a Dispute Resolution Task Force or the Enforcement Hotline.
The Working Group proposes that, for a fifteen month pilot period, a complainant must submit a dispute to mediation prior to filing a complaint (other than complaints seeking to change filed rates, terms and conditions of service, or seeking expedited relief on the grounds of irreparable harm). The parties must engage in mediation efforts for a period not to exceed thirty days, with the objective of either settling the dispute or narrowing the policy issues and factual disputes remaining to be resolved.
The Commission will create a Division of Dispute Resolution (DDR) that will determine which of several dispute resolution mechanisms will be employed to resolve those disputes not resolved by the pre-complaint procedures listed above.
The Working Group proposes the following dispute resolution procedures. The DDR would select the appropriate procedure(s) depending upon the issues presented by the complaint:
Assignment to an Office Director who will prepare a Letter Order for issuance by the Commission that resolves the matter;
Assignment to ADR procedures;
Assignment to an Administrative Law Judge who will set a schedule for cross motions for summary judgment and will issue a Recommended Decision;
Assignment to an Administrative Law Judge for hearing on an expedited basis or a schedule to be determined by the ALJ; and,
Referral to the Commission.
The Working Group recommends that complaints be filed within a reasonable time following the underlying events or course of conduct.
The Working Group cannot agree on whether the Commission has the authority to issue preliminary injunctive relief. The Commission should resolve that issue itself. If the Commission concludes that it has the authority to issue such relief, it should do so based on factors that are customarily used to justify such relief.
Nothing in this proposal is intended to modify any party's rights under any Federal statute or to modify any party's rights under any Federal regulations except as provided herein. Nothing proposed herein is intended to modify current law with respect to burden of proof or judicial remedies.