On August 22, 2019, FERC dismissed as premature Alternative Transmission Inc.’s (“ATI”) petition for declaratory order (“Petition”) asking FERC to declare that ATI’s alternative transmission facilities and services are subject to FERC’s jurisdiction and that ATI, as the owner and operator of the facilities, will be a public utility under the Federal Power Act (“FPA”).

In the Petition, ATI proposed to own and operate facilities that would transmit electric energy in interstate commerce through the use of electric energy charging stations.  These stations would forgo the use of transmission lines in the transmittal of electric energy by charging an electrolyte solution in a flow battery and moving such battery between states to discharging stations where the transport containers would connect to an electrical load to discharge its energy.  ATI requested that FERC declare that ATI’s proposed alternative transmission services and facilities fall under FERC’s FPA-granted jurisdiction over the rates, terms, and conditions of the transmission of electric energy in interstate commerce, as, according to ATI, FERC and the courts have never restricted the scope of FPA jurisdiction to be solely over specific modes of transportation of electricity.  Further, ATI requested that FERC declare that ATI would be a “public utility” under the FPA, as ATI would be the owner and operator of facilities subject to FERC’s FPA-granted jurisdiction.

In its August 22 order, FERC dismissed ATI’s Petition, finding that ATI’s requests were premature.  FERC stated that it has previously addressed the classification of non-traditional assets that do not fit into one of the traditional asset functions of generation, transmission, or distribution on a case-by-case basis, but explained that it has also dismissed petitions where applicants have provided incomplete information.  FERC stated that ATI did not supply detailed descriptions of how the alternative transmission facilities would function and operate, it did not identify the specific transmission planning region where the alternative transmission would participate, and it did not point to a specific transmission need identified as a result of a regional transmission planning process.  For these reasons, FERC found that it could not make a reasoned decision on whether ATI’s proposed facilities and services would provide transmission of electric energy in interstate commerce or whether ATI would qualify as a public utility under the FPA.

A copy of the order is available here.