2010 Pennsylvania Code
Title 66 - PUBLIC UTILITIES
Chapter 28 - Restructuring of Electric Utility Industry
2811 - Market power remediation.

     § 2811.  Market power remediation.
        (a)  Monitoring competitive conditions.--The commission shall
     monitor the market for the supply and distribution of
     electricity to retail customers and take steps as set forth in
     this section to prevent anticompetitive or discriminatory
     conduct and the unlawful exercise of market power.
        (b)  Initiation of investigations.--Upon complaint or upon
     its own motion for good cause shown, the commission shall
     conduct an investigation of the impact on the proper functioning
     of a fully competitive retail electricity market, including the
     effect of mergers, consolidations, acquisition or disposition of
     assets or securities of electricity suppliers, transmission
     congestion and anticompetitive or discriminatory conduct
     affecting the retail distribution of electricity.
        (c)  Conduct of investigations.--
            (1)  The commission may require an electricity supplier
        to provide information, including documents and testimony,
        in accordance with the commission's regulations regarding the
        discovery of information from any electricity supplier.
            (2)  Confidential, proprietary or trade secret
        information provided under this subsection shall not be
        disclosed to any person not directly employed or retained by
        the commission to conduct the investigation without the
        consent of the party providing the information.
            (3)  Notwithstanding the prohibition on disclosure of
        information in paragraph (2), the commission shall disclose
        information obtained under this subsection to the Office of
        Consumer Advocate and the Office of Small Business Advocate
        under an appropriate confidentiality agreement. The
        commission may disclose the information to appropriate
        Federal or State law enforcement officials if it determines
        that the disclosure of the information is necessary to
        prevent or restrain a violation of Federal or State law and
        it provides the party that provided the information with
        reasonable notice and opportunity to prevent or limit
        disclosure.
        (d)  Referrals and intervention.--If, as a result of an
     investigation conducted under this section, the commission has
     reason to believe that anticompetitive or discriminatory
     conduct, including the unlawful exercise of market power, is
     preventing the retail electricity customers in this Commonwealth
     from obtaining the benefits of a properly functioning and
     workable competitive retail electricity market, the commission,
     pursuant to its regulations, shall:
            (1)  Refer its findings to the Attorney General, the
        United States Department of Justice, the Securities and
        Exchange Commission or the Federal Energy Regulatory
        Commission.
            (2)  Subject to subsection (c)(3), disclose any
        information it has obtained in the course of its
        investigation to the agency or agencies to which it has made
        a referral under paragraph (1).
            (3)  Intervene, as provided and permitted by law or
        regulation, in any proceedings initiated as a result of a
        referral made under paragraph (1).
        (e)  Approval of proposed mergers, consolidations,
     acquisitions or dispositions.--
            (1)  In the exercise of authority the commission
        otherwise may have to approve the mergers or consolidations
        by electric utilities or electricity suppliers, or the
        acquisition or disposition of assets or securities of other
        public utilities or electricity suppliers, the commission
        shall consider whether the proposed merger, consolidation,
        acquisition or disposition is likely to result in
        anticompetitive or discriminatory conduct, including the
        unlawful exercise of market power, which will prevent retail
        electricity customers in this Commonwealth from obtaining the
        benefits of a properly functioning and workable competitive
        retail electricity market.
            (2)  Upon request for approval, the commission shall
        provide notice and an opportunity for open, public
        evidentiary hearings. If the commission finds, after hearing,
        that a proposed merger, consolidation, acquisition or
        disposition is likely to result in anticompetitive or
        discriminatory conduct, including the unlawful exercise of
        market power, which will prevent retail electricity customers
        in this Commonwealth from obtaining the benefits of a
        properly functioning and workable competitive retail
        electricity market, the commission shall not approve such
        proposed merger, consolidation, acquisition or disposition,
        except upon such terms and conditions as it finds necessary
        to preserve the benefits of a properly functioning and
        workable competitive retail electricity market.
        (e.1)  Market misconduct.--
            (1)  If an electric distribution company or any of its
        affiliated companies or any company that an electric
        distribution company has purchased generation from is found
        guilty of market manipulation, exercising market power or
        collusion by the Federal Energy Regulatory Commission or any
        Federal or State court or, if an electric distribution
        company or any one of its affiliated companies or any company
        that an electric distribution company has purchased
        generation from settles a claim of market manipulation,
        exercising market power or collusion that is brought by a
        regional transmission operator's market monitoring unit, the
        Federal Energy Regulatory Commission or another entity, the
        commission:
                (i)  Shall direct the electric distribution company
            to take any and all reasonable action to quantify the
            effect of the market misconduct upon Pennsylvania
            ratepayers.
                (ii)  Following public hearing on the matter and a
            finding of public interest, may direct the electric
            distribution company to take any and all reasonable legal
            action, including the filing of a lawsuit as may be
            necessary, to recover the quantified damages which shall
            be used to recompense Pennsylvania ratepayers affected by
            the market misconduct.
            (2)  If the electric distribution company fails to pursue
        reasonable action to quantify or seek recovery of damages for
        Pennsylvania ratepayers affected by market manipulation, the
        exercise of market power or collusion, the commission is
        authorized, following notice and an opportunity of the
        electric distribution company to comply or contest, to assess
        a civil penalty, which shall not be recovered in rates, of
        not more than $10,000 per day for failure or neglect to obey
        an order of the commission, the continuance of the failure or
        neglect being a separate offense.
            (3)  Any monetary damages recovered by the electric
        distribution company shall be paid to affected Pennsylvania
        ratepayers in the form of a credit to their electric bills or
        as refunds.
            (4)  The provisions of this subsection shall be held to
        be in addition to and not in substitution for or limitation
        of any other provision of this title.
        (f)  Preservation of rights.--Nothing in this section shall
     restrict the right of any party to pursue any other remedy
     available to it under this part.
     (Oct. 15, 2008, P.L.1592, No.129, eff. 30 days)

        2008 Amendment.  Act 129 added subsec. (e.1)