On 20 October 2011, the Federal Energy Regulatory Commission (FERC or "the Commission") issued a Notice of Proposed Rulemaking (NOPR) that would require each regional transmission organization (RTO) and independent system operator (ISO) to deliver certain types of data to the Commission on an ongoing basis (and in electronic format). Enhancement of Electricity Market Surveillance and Analysis through Ongoing Electronic Delivery of Data from Regional Transmission Organizations and Independent System Operators, 137 FERC ¶ 61,066 (2011). FERC believes that such data will help the Commission identify (1) anti-competitive or manipulative behavior and (2) ineffective market rules. The proposed rule is a continuation of the Commission's recent actions to obtain additional market data. Indeed, so far in 2011 FERC has proposed rules to obtain access to e-Tag data related to transmission transactions, and has proposed to require non-jurisdictional entities to submit electronic quarterly reports listing their wholesale electricity sales.

The NOPR identifies ten classes of data for which the Commission will require automated electronic delivery:

  • Supply offers and demand bids for energy and ancillary services.
  • Virtual offers and bids.
  • Energy/ancillary service awards.
  • Capacity market offers, designations, and prices.
  • Resource output.
  • Marginal cost estimates.
  • Day-ahead shift factors.
  • FTR data.
  • Internal bilateral contracts.
  • Pricing data for interchange transactions. 

The NOPR would not require an RTO/ISO to collect or report data that it does not already collect. RTOs/ISOs would need to deliver any relevant data (in specified electronic formats) within seven days after the RTO/ISO creates the datasets in a market run or otherwise. Because the underlying information is commercially sensitive, the Commission would keep all data non-public.

The Commission believes that electronic data reporting would help it to identify anti-competitive or manipulative behavior, thereby improving the Commission's market surveillance function. For example, the Commission asserts that collecting data regarding supply offers, demand bids, virtual offers and bids, and FTR data will allow the Commission to understand "how market participants are positioning themselves in RTO/ISO markets." Additionally, the Commission argues that collection of data regarding marginal cost estimates and shift factors "will enhance the Commission's ability to identify such behavior that may be designed to impact RTO/ISO pricing," while data regarding interchange pricing "will assist the Commission's efforts to identify anomalous or uneconomic electricity interchange schedules." The Commission concludes that the data will make illicit behavior "more difficult to mask." Notably, the NOPR is silent as to how the Commission's investigations staff will use such data in investigations against individual market participants.

The Commission also believes that the data will help it "to better identify inefficient market rules and better inform Commission policies and decision-making, and thus help prevent anti-competitive behavior and ensure just and reasonable rates." The Commission notes that it is in a unique position to analyze data from across the RTO/ISO markets and that the data will allow the Commission to better "assess the performance of different market designs and rules." The Commission emphasizes that its goal is to augment (and not to replace) the marketing monitoring functions performed by each RTO/ISO market monitoring unit.