By Ted Caddell

D.C.’s consumer advocate asked the Public Service Commission last week for more time to respond to Exelon’s sweetened offer in its proposed $6.8 billion acquisition of Pepco Holdings Inc., saying Exelon’s Feb. 18 filing is a “procedural mess.” If granted, a final decision from the PSC could be delayed until fall.

Exelon submitted an updated filing with data responses and hundreds of pages of testimony shortly after announcing it would more than double the customer credits to D.C. ratepayers to $33.75 million. (See Exelon Sweetens the Deal for DC in Pepco Takeover.)

In a joint filing with the Apartment and Office Building Association of Metropolitan Washington on Wednesday, the Office of People’s Counsel complained that Exelon’s filing doesn’t point out the differences between it and its original submission. The OPC is asking to file its responses — due March 18 — in April, with a May 26 deadline for any supplemental testimony.

“Due process, fairness and the need for a clean evidentiary record must prevail over corporate expedience,” the OPC said.

Exelon has said it expects approval from the two remaining authorities it still needs, Maryland and the District, by the third quarter.

Exelon said last week that it will oppose the delay. “The six-week extension that the commission recently granted is more than adequate, and the request for additional time is unwarranted,” Exelon spokesman Paul Adams said.

The PSC has scheduled hearings for late April into June. If it grants the OPC request, hearings probably wouldn’t start until June, with a final decision from the PSC in September or October.

Antitrust Institute Weighs In

Also last week, the president of the American Antitrust Institute asked the U.S. Department of Justice to block the merger or impose mitigation measures.

“A merged Exelon-Pepco would possess an enhanced ability and pre-existing, powerful incentive to engage in vertical foreclosure and block entry by rivals,” wrote AAI President Diana Moss in a letter to Assistant Attorney General William J. Baer on Wednesday. “If unaddressed through antitrust remedies, the proposed merger stands not only to harm competition and consumers but also to reverse some of the gains from restructuring.”

Adams said the organization’s complaint was without merit. “These same allegations were already considered and rejected by the Federal Energy Regulatory Commission, which approved the merger.”

RTO Insider reported in December that the Justice Department was investigating the interconnection process in PJM’s MAAC sub-region as part of its anti-trust review of the acquisition. (See DOJ Probing Interconnection Process in Exelon-Pepco Merger.)

AAI says it advocates on behalf of consumers to “challenge abuses of concentrated economic power.”

Although the Exelon-Pepco deal has already gained the approval of regulators in Virginia, New Jersey and Delaware, “the state settlements that we have seen so far do not produce any additional remedies that give us the comfort level we need that a merged Exelon-Pepco would not be able to exercise their market powers,” Moss said in an interview.

If Exelon acquires Pepco, “you will now have a bigger transmission owner, sitting on a pretty substantial pile of generation,” she said. “The problem is, if you control the network, and you also own generation, you have the ability and the incentive to frustrate access by competing developers.”