Market Power in Power Markets : The Filed-Rate Doctrine and Competition in Electricity

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale markets exist everywhere today. Independent power producers can now construct generation and sell their output to utilities and direct purchasers through bilateral contracts. In many regions, centralized power markets have also been established and facilitate the sale of billions of dollars in electricity annually through hourly auctions. As market forces have replaced direct price regulation in electricity, antitrust enforcement, however, has not expanded its role commensurately. Even though a lack of competition has been a chronic problem in power markets and arguably undermined the purpose of industry restructuring, the courts have invoked the filed rate doctrine to prohibit private antitrust suits against generators and other market participants accused of collusive behavior. The courts have held that federal and state regulation is adequate to maintain competitive markets and have questioned their own ability to deter anticompetitive behavior. The courts have used this faulty line of regulatory adequacy combined with judicial deficiency to immunize power generators from antitrust damages liability. While Congress or the Supreme Court should abolish the doctrine and allow for the antitrust laws to be fully enforced in electricity markets, eliminating this immunity is not sufficient to create competitive power markets and prevent repeats of the market manipulation seen in the California and Texas markets. The existence of private treble damages suits could have deterred collusive conduct like the anticompetitive financial arrangement between two major generators in the New York City wholesale market between 2006 and 2008. Yet, the antitrust laws are comparatively powerless to remedy the principal forms of anticompetitive behavior seen in power markets. Antitrust jurisprudence in the United States does not proscribe the exercise of unilateral market power and places high hurdles to finding liability against parties accused of colluding tacitly. Given the limitations of traditional private antitrust remedies, federal and state regulators must focus on creating competitive market structures. They can take three concrete steps toward this end: police generator consolidation more carefully, encourage expansions of the transmission grid, and expose more ratepayers to price signals. Vigorous application of these broader competition policy measures is necessary to redeem a restructuring project whose results thus far have been, at best, uncertain