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"The Filed-Rate Doctrine and Market-Based Rates: Who's In Charge?"

On November 14, 2005, MBO attorney Randy Elliott presented a paper entitled "The Filed-Rate Doctrine and Market-Based Rates: Who's In Charge?" at the 2005 American Public Power Association Legal Seminar in San Antonio, Texas.

The paper examines a recent series of decisions by the United States Court of Appeals for the Ninth Circuit growing out of the California energy crisis of 2000-2001. The court held that states and utilities could not use claims under state antitrust, unfair-competition, or contract law to obtain injunctive or monetary remedies for excessive wholesale electricity prices charged during the crisis, because Congress gave the Federal Energy Regulatory Commission (FERC) exclusive regulatory authority over wholesale electricity prices, and courts could not second-guess the "filed rates" at the FERC. Meanwhile, in another case the same court held that FERC was not enforcing its own requirements for wholesale "market-based" rates, so for all practical purposes there were no "filed rates," and FERC was violating the very statute that gave it exclusive authority over these matters. Read together, the court's opinions signal that Congress put FERC is in charge, and FERC must fulfill its statutory responsibilities to protect consumers.