On April 10, 2019, FERC dismissed a complaint (“Complaint”) filed by RTO Insider LLC (“RTO Insider”) concerning the New England Power Pool Participants Committee’s (“NEPOOL”) policies prohibiting press and non-member attendance and reporting on NEPOOL stakeholder meetings.  FERC granted NEPOOL’s Motion to Dismiss, stating that it lacked jurisdiction over the NEPOOL policies because NEPOOL is not a public utility and the policies in question do not directly affect jurisdictional rates.

RTO Insider is a trade publication publisher that reports on wholesale electricity markets and policymaking.  NEPOOL is a private association of approximately 480 market participants and other stakeholders in the ISO New England Inc. (“ISO-NE”) footprint.  The purpose of NEPOOL, as set out in the NEPOOL Agreement, is generally to provide the primary stakeholder process for advisory input on ISO-NE proposals to revise the ISO-NE Tariff, related rules and practices, and ISO-NE Board selection.

On August 31, 2018, RTO Insider filed its Complaint, requesting that FERC find NEPOOL’s policies prohibiting press and non-member attendance and reporting on NEPOOL stakeholder meetings unlawful, unjust and unreasonable, unduly discriminatory, and contrary to public interest.  RTO Insider requested that FERC direct NEPOOL to cease and desist from imposing such a ban on press and public attendance.  In its Motion to Dismiss, NEPOOL asked FERC to dismiss the Complaint on the grounds that: (1) FERC lacked jurisdiction under the Federal Power Act (“FPA”) over NEPOOL’s meeting policies; (2) RTO Insider lacked standing to challenge the NEPOOL press policies; and (3) RTO Insider failed to comply with Rule 206 by not establishing a prima facie case.

FERC found that it did not have jurisdiction over the Complaint, and therefore granted NEPOOL’s Motion to Dismiss.  FERC stated that NEPOOL is not a public utility as defined by the FPA and, therefore, FERC can only exert jurisdiction over NEPOOL if its operations directly affect jurisdictional rates.  Unlike rules governing NEPOOL membership, which dictate who may vote on proposed ISO-NE filings and NEPOOL-originated “jump ball” proposals, FERC found that neither NEPOOL’s rules prohibiting press attendance at NEPOOL meetings, nor those rules prohibiting reporting at NEPOOL meetings, have a direct effect on filings submitted to FERC and, therefore, such rules are distinct from those rules that directly affect jurisdictional rates.

Commissioner Richard Glick wrote a concurring opinion, in which he agreed that FERC lacked jurisdiction over the NEPOOL press attendance rules at issue, but offered that the rules are misguided because the public and the press have a legitimate interest in how NEPOOL is considering matters of public interest.  He stated that NEPOOL and its members would be better served by permitting public and press attendance who could better inform all entities, which would lead to a more robust discussion of the issues and, ultimately, to better public policy.

FERC’s order granting the NEPOOL Motion to Dismiss can be found here.