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Despite Potential Market Manipulation, FERC Declines to Reject Power Auction Results

The Federal Energy Regulatory Commission (FERC or the Commission) recently opted not to take action to set aside the results of a power auction that was allegedly manipulated.  In the face of significant public complaints, the Commission ordered revisions to tariff provisions governing future auctions.  While it opted not to take action here, the opinions of the commissioners effectively gave notice to capacity owners that rate increases alone may be a sufficient basis for investigating auction results, even if the auction is conducted pursuant to tariff. The matter involved the impacts of actions taken by an energy provider that altered the outcome of a competitive auction.  Energy Capital Partners, a private equity firm, allegedly exercised and abused market power by announcing the impending shutdown of its coal-fired plant just prior to the auction and after the deadline for new resources to participate (thereby leaving a significant power deficit,...

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FERC Reaffirms Merger Policy; Does Not Adopt DOJ/FTC 2010 Horizontal Merger Guidelines

by Jon Dubrow and Cerissa Cafasso Public utilities could face different levels of scrutiny in merger reviews before the U.S. Federal Energy Regulatory Commission, and the Department of Justice and the Federal Trade Commission (the Antitrust Agencies). To view the full article, please click here. 

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FTC Publishes Comments to FERC Notice of Inquiry Regarding 2010 Horizontal Merger Guidelines

by Jon B. Dubrow and Carrie G. Amezcua On Tuesday the FTC published its comments to FERC's Notice of Inquiry (NOI), in which  FERC had asked for comments on whether, (and if so, how), it should revise its approach for examining market power concerns arising from horizontal mergers to reflect the revised 2010 Horizontal Merger Guidelines published by the FTC and DOJ.  The NOI also asked for comments on what impact the revised Merger Guidelines should have on FERC's analysis of horizontal market power in its electric market-based rate program. The theme of the FTC's comments focus on encouraging FERC to adopt the broader set of concepts from the 2010 Horizontal Merger Guidelines, not just the revised HHI thresholds, as FERC's NOI suggests.  HHI (Herfindahl-Hirschman Index) is a measure of market concentration, based on market share analysis.  The FTC points out that a "critical thrust" of the 2010 Merger Guidelines is that...

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