Reliance on PJM’s Course of Conduct

Reliance on PJM’s Course of Conduct

82. 
    Complainants contend that the course of performance by PJM and Complainants over the last five years demonstrates that the IBTs comply with the tariff requirements, specifically including the “contemplation of the physical transfer of energy” language contained in section 1.7.10.¹³⁴ Complainants also contend that PJM lacks the authority to unwind the IBTs, perform retroactive energy resettlements, and rebill Complainants for deviation charges. Complainants argue that the 2008 Credit Risk Filing did not place market participants on notice that they could no longer use IBTs to minimize deviation charges and that PJM’s proposed action would violate the filed rate doctrine.¹³⁵
    
83. 
    We do not find that PJM’s acceptance of eSchedules in this case indicates that Complainants’ IBTs were properly reported under section 1.7.10 as meeting the physicality requirement. Complainants contend that the fact that PJM accepted their eSchedules over the course of years shows that their transactions satisfied the Tariff. However, PJM represents that it was not aware of the nature of Complainants’ IBTs until June 2011, and Complainants do not claim that PJM affirmatively indicated that their IBTs were Tariff-compliant. Complainants appear to have inferred from the absence of objections on PJM’s part that they were reporting their IBTs properly. In fact, PJM explains that it passively accepted Complainants’ eSchedules without actively evaluating whether they were compliant with section 1.7.10, noting that, by clicking through a message in eSchedules, Complainants represented that the transactions were compliant IBTs under section 1.7.10, and PJM did not have a practice of looking behind the representations. Thus, we find that Complainants’ description of PJM’s course of conduct does not support a finding that section 1.7.10 permits reporting of Complainants’ transactions.
    
84. 
    Likewise, we do not find that PJM’s issuance of a Problem Statement regarding improper use of IBTs means that PJM’s existing Tariff language and rules are unclear, as Scylla asserts.¹³⁶ The decision by PJM to explore possible improvements to its Tariff and rules regarding IBTs does not necessarily reflect upon the clarity or ambiguity of the existing rules, but merely reflects PJM’s recognition that certain market participants have used IBTs in a manner that might not have been previously anticipated.
    
85. 
    Complainants contend that Commission precedent and the filed rate doctrine preclude PJM from reinterpreting Tariff provisions retroactively and that the 2008 Credit Risk Filing did not place participants on notice of PJM’s new interpretation of section 1.7.10, particularly since PJM continued to accept these bilateral transactions after the 2008 tariff went into effect.¹³⁷ Scylla similarly argues that it would be unfair to apply PJM’s allegedly new interpretations of section 1.7.10 against DC Energy (and Scylla) as if they were a written component of the Tariff. But the assumption underlying these claims is that PJM previously interpreted its Tariff as allowing transactions like Complainants’ IBTs to be reported under section 1.7.10 and now PJM is applying a new interpretation. That is not the case. No party has shown that PJM ever interpreted its Tariff in that manner or is now reinterpreting its Tariff. To the contrary, PJM states that it intends to rebill Complainants (and Scylla) because it needs to correct an error, not because it reinterpreted an existing Tariff provision and came to a different result. PJM initially accepted Complainants’ eSchedules based on the assumption that Complainants had correctly reported the IBTs as compliant with section 1.7.10. Once PJM was alerted to a possible Tariff violation and realized that some transactions did not qualify for reporting under section 1.7.10, PJM advised Complainants, and Scylla, and the unnamed entity which has already agreed to rebilling, of the need to rebill. There is no evidence that PJM acted in any manner other than to properly enforce its Tariff in accordance with section 1.7.10’s language.¹³⁸
    
86. 
    Complainants assert that they satisfied the Tariff both before and after the 2008 Credit Risk Filing.¹³⁹ We disagree. The amendments to section 1.7.10 in the 2008 Credit Risk Filing merely clarified the earlier requirement that only “[b]ilateral arrangements that contemplate the physical transfer of energy to or from a Market Participant shall be reported to and coordinated with the Office of the Interconnection in accordance with this Schedule.” The 2008 Credit Risk Filing did not add a new requirement of physicality to section 1.7.10; it merely emphasized and clarified the pre-existing physicality requirement. Among other changes, the 2008 Credit Risk Filing clarified that “[b]ilateral contracts that do not contemplate the physical transfer of energy to or from a Market Participant are not subject to this Schedule, shall not be reported to and coordinated with the Office of the Interconnection….”¹⁴⁰ Therefore, we find that it was not appropriate for Complainants to report their non-physical IBTs under section 1.7.10, either before or after the 2008 Credit Risk Filing.
    
87. 
    Complainants claim that PJM lacks the authority to reject eScheduled IBTs, citing section 1.7.10(a)(v) and asserting that this provision places tight restrictions on when PJM may reject or terminate an IBT eSchedule. However, this provision merely specifies that, “[u]pon any default in obligations to the LLC or PJM Settlement by a Market Participant, the Office of the Interconnection shall (i) not accept any new eSchedules or Enhanced Energy Schedule reporting by the Market Participant and (ii) terminate all of the Market Participants’ eSchedules and Enhanced Energy Schedules associated with its bilateral contracts previously reported to the Office of the Interconnection for all days where delivery has not yet occurred.”¹⁴¹ Thus, the provision merely states that PJM has an affirmative obligation to reject and terminate eSchedules of a defaulting member. Section 1.7.10(a)(v) contains no term that restricts PJM’s ability to reject or terminate eSchedules outside of the case of default. We disagree with Complainants’ contention that by “empower[ing]” PJM to reject or terminate eSchedules in the case of default, this provision somehow limits PJM’s authority to reject or terminate eSchedules in other circumstances.¹⁴²
    

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