By Michael Kuser

FERC on Thursday approved ISO-NE’s request not to disclose — even to non-market participants — any proprietary information from certain de-list bids for the RTO’s upcoming 12th Forward Capacity Auction.

The commission’s Oct. 19 order (ER17-2110) accepted the filing of de-list bids and granted the RTO’s request to waive a requirement that parties seeking privileged treatment for certain filings provide intervenors who execute a nondisclosure agreement access to that material.

ISO-NE in July submitted both privileged and public versions of a filing describing the permanent de-list bids and retirement de-list bids submitted for the upcoming FCA 12, to be held in February 2018 for the 2021-22 Capacity Commitment Period.

The RTO reported that it received one permanent delist bid and 23 retirement delist bids from six power suppliers for the upcoming FCA, covering resources located throughout all eight New England zones.

FERC staff in August issued a deficiency letter in response to ISO-NE’s filing of de-list bids, asking that the RTO also submit a form of NDA. The RTO responded two days later with an NDA as well as its waiver request.

The RTO’s auction qualification process requires owners of existing capacity resources that wish to exit their capacity supply obligation to submit delist bids specifying a price below which they do not wish to provide capacity. Such bids submitted ahead of an FCA may be “static” for a one-year exit from the capacity market; “permanent” for a permanent exit from the capacity market; or a “retirement” de-list bid for permanent exit from all ISO-NE markets, including that for energy.

Public Citizen Protest

Public Citizen filed the only protest to the request, contending that lack of access to the privileged components of the filing made it “impossible to determine” whether the permanent de-list bids and retirement de-list bids were just and reasonable.

ISO-NE countered that the privileged information includes “the [de-list] bidders’ expected cash flows, expectations regarding capacity market payments and information regarding opportunity costs … [and] critical aspects of suppliers’ likely bidding strategies … [which], in conjunction with the other confidential information, reveals the prices at which supply would be withdrawn in the auction.”

The grid operator asserted that the privileged portions of its filing contain “highly confidential, market sensitive information” that could “provide market participants who obtain it with an unfair competitive advantage” in future capacity auctions, thus negatively affecting the competitiveness of those auctions. The RTO referred to an earlier FERC order on FCA 8 in which the commission agreed that revealing resource-specific bid data would result in such significant harm to the Forward Capacity Market that it could not be provided to parties even if they signed an NDA.

Public Citizen argued that the FCA 8 order did not apply to its own request because the organization is not a market participant.

“We disagree,” the commission said in its ruling. Although the FCA 8 order referred to market participants, the commission reiterated its finding that harm could not result solely from disclosure to market participants. Rather, “the potential for harm to the FCM and to New England customers from any disclosure of this protected information could be significant.”

In the FCA 8 order, the commission noted that parties had access to a significant amount of publicly available information regarding the auction and therefore did not require ISO-NE to disclose the privileged information.

“We find that the same rationale applies here,” FERC ruled Thursday.