A Canadian company must prove it does not have market power in a geographic market that includes parts of northern Maine, or take steps to mitigate that market power, FERC ruled Oct. 19 (ER14-225-009).

New Brunswick Energy Marketing (NBEM) failed the wholesale market share indicative screen in three out of four seasons for the November 2020 to December 2021 study period, while passing the pivotal supplier indicative screen. FERC presumes the existence of horizontal market power when a seller fails one of the screens.

NBEM argued in its 2022 filing that a delivered price test and additional evidence indicate the NBEM does not have market power, despite the screen failure.

Based on the evidence it provided, NBEM urged the commission to “conclude that NB Energy Marketing has rebutted the presumption of horizontal market power and satisfies the commission’s horizontal market power standard for the grant of continued market‐based rate authority.”

FERC responded that despite the additional evidence, “we conclude that New Brunswick Energy Marketing’s failure of the wholesale market share indicative screen provides the basis for the commission to institute the instant section 206 proceeding … to determine whether New Brunswick Energy Marketing may continue to charge market-based rates.”

FERC added it can initiate an investigation into market power while it reviews the additional evidence provided. It directed NBEM to provide evidence to justify “why the commission should not revoke New Brunswick Energy Marketing’s market-based rate authority in the New Brunswick balancing authority area.”

NBEM alternatively could propose measures to mitigate any market power, adopt FERC’s default cost-based rates or submit different cost-based rates.

FERC told NBEM to file a response within 60 days of the order, and said it expects to issue a final decision by April 16, 2024.