Section 100.15. Market power screen analysis.

 

(1)  Except as provided for in sub. (2) , an applicant shall submit a market power screen analysis, which shall provide, at minimum, all of the following information:

(a) Relevant products . Using the principles of analysis outlined in the DOJ guidelines; the information shall identify and define all relevant electricity products sold by the applicant and its affiliates. Those relevant products which are good substitutes from the buyer's perspective shall be grouped together. An initial grouping of wholesale products may consist of non-firm energy, short-term capacity, and long-term capacity with a contractual commitment of more than one year. However, other capacity and energy groupings reflecting developments in an evolving wholesale market are acceptable as long as the groupings are reasonable or simply mirror the state of art in product packaging. The information provided shall identify the relevant products by relevant hourly, daily, monthly, and seasonal time periods. If there are substantial variations in demand and supply of capacity or energy between time periods, then load supply and demand conditions shall be analyzed separately.

(b) Relevant geographic markets . Using the principles of analysis outlined in the DOJ guidelines, the information shall identify the relevant geographic markets which shall include each power sales customer or set of customers plausibly affected by the proposed construction. Affected customers are those entities directly interconnected to the applicant or any of its affiliates, as well as those entities that have purchased relevant electricity products from the applicant or any of its affiliates during the 2 years prior to the date of filing. Identification of relevant geographic markets shall factor in appropriate transmission capabilities and constraints. In addition, the relevant geographic markets shall include any markets formally identified by the commission or the federal energy regulatory commission.

(c) Potential suppliers . A supplier may be included in a geographic market only to the extent that it can economically and physically deliver relevant electricity products to the relevant geographic market, taking into consideration appropriate transmission capabilities, fees, rights, reservations, tariffs, and constraints. The information shall include, for the relevant geographic market, the amount of relevant electricity product a potential supplier could deliver to the relevant geographic market from owned or controlled capacity at a price, including all costs associated with making physical delivery over the electrical transmission system as well as ancillary services costs, that is no more than 5% above the pre-transaction market clearing price in the relevant geographic market. The information shall measure each potential supplier's presence in the relevant geographic market in terms of generating capacity, using economic capacity, available economic capacity, and total capacity measures. In addition, the information shall measure, where possible, each potential supplier's presence in the relevant geographic market in terms of electrical energy sold or expected to be sold.

(d) Market concentration . The information shall include all of the following for each relevant electricity product in the relevant geographic market, based on the generating capacity determined in par. (c) :

1. The market share, both pre- and post-construction, for each potential supplier.

2. The HHI statistic for the market.

3. The change in the HHI statistic.

(e) Forward looking analysis . The market power screen analysis shall generally be forward looking and reflect all known, important developments with respect to electric industry restructuring, and electric generation and transmission construction or operation. The market power screen analysis shall examine the first 5 years of commercial in-service for the proposed electric generating facility and address whether applicant's proposed ownership, control or operation of a wholesale merchant plant will have a substantial anti-competitive effect on relevant electricity markets that are reasonably anticipated to exist for any class of customers, including those with market-based rates under s. 196.192 , Stats. Any such forward-looking analysis shall not preclude the commission from mitigating retail market power or otherwise addressing retail market power in the future in connection with the introduction of competition in the retail market.

(f) Historical data . The information shall include historical trade data and historical transmission data for the applicant and all of its affiliates for the two-year period preceding the filing of the application.

(g) Regulatory filings. The information shall include all material filed with the federal energy regulatory commission related to any issue of market power associated with an applicant's proposal to own, operate, or control a wholesale merchant plant.

(h) Supplemental data or analysis . The information may include any additional data or analysis, as long as the additional information accords with the principles of market power analysis, identification, and interpretation contained in the DOJ guidelines.

(i) Source of data . In constructing the market power screen analysis, the applicant shall use the sources of data as outlined in Appendix B of FERC Order 592.

(2)  An affiliated interest may forgo filing a market power screen analysis if any of the safe harbor exceptions in s. PSC 100.16 are met, or if it proposes mitigation remedies which effectively mitigate any substantial anti-competitive effect on electricity markets for any class of customer, as provided in s. PSC 100.13 (4) . The applicant shall file documentation and data supporting the applicable safe harbor exemption or proposed mitigation remedies in lieu of the market power screen analysis. The applicability of the safe harbor exemption is left with the commission.

(3)  

(a) The commission shall use the DOJ guidelines when measuring the extent of market power, or analyzing the potential for adverse competitive effects, of any proposal of an affiliated interest of a public utility to own, operate, or control a wholesale merchant plant, pursuant to s. 196.491 (3m) , Stats. In addition, the commission may consider the extent to which timely, effective entry into the relevant wholesale generation market can mitigate market power concerns.

(b) Any market power screen analysis shall analyze concentration as if a merger of the proposed plant and the existing generation owner occurred after construction of the proposed plant, shall aggregate ownership of a public utility and all its affiliates, and shall aggregate successive construction by public utilities and their affiliates for a period covering no more than three years.

(c) The commission may waive information requirements after providing interested parties the opportunity to provide comments. In addition, the commission may require the applicant to supplement the data filed under this subchapter by submitting additional information, as needed to evaluate the market power screen analysis, applicable safe harbor exemptions, or proposed mitigation remedies.

Cr. Register, July, 2000, No. 535 , eff. 8-1-00.