[00:00:00] Speaker 00: Mr Longstreth for the petitioner, Oklahoma Gas and Electric Company, Mr Binnett for the petitioner, Southwest Power Pole Inc. [00:00:18] Speaker 00: Mr Lowell for the interveners for the respondents. [00:00:24] Speaker 00: Mr Longstreth is now unmuted. [00:00:27] Speaker 00: Good morning. [00:00:28] Speaker 04: Good morning. [00:00:31] Speaker 04: Thank you, and may it please the court. [00:00:33] Speaker 04: I'm John Longstreth. [00:00:34] Speaker 04: I'll be arguing for Oklahoma Gas and Electric, OG&E, and Mr. Burnett will be arguing for the co-peditioner, Southwest Power Pool, or SPP, which administers the tariff at issue in this case. [00:00:46] Speaker 06: In this case... Have the two of you divided up the issues in any way? [00:00:51] Speaker 04: Um, I think yes. [00:00:53] Speaker 04: So although obviously I'll be ready to answer questions or ask it, but we've decided that Mr. Bennett will be primarily responsible for the tariff issues because it's FPP is terror. [00:01:07] Speaker 06: You're going to do the go ahead then. [00:01:09] Speaker 04: Thank you. [00:01:11] Speaker 04: Yeah. [00:01:11] Speaker 04: In this case, thank you. [00:01:12] Speaker 04: Thank you, Your Honor. [00:01:14] Speaker 04: In this case, the Commission for, and I'm sorry, one other thing, the Section 309 remedy issues, which were at the end of our brief, Mr. Barnett is going to take the lead on those as well. [00:01:24] Speaker 04: In this case, the Commission first allowed, then refused to allow, SPP to implement a provision of its tariff during a period during which [00:01:33] Speaker 04: With the knowledge and participation of all of its stakeholders, including Excel and AEP, SPP was determining the charges due under that tariff. [00:01:42] Speaker 04: That provision is known as Attachment Z2, and it was a filed rate under the SPP tariff throughout this period, with only the charges remaining to be determined. [00:01:52] Speaker 04: In reliance on that filed rate, OG&E and other utilities, many of whom are interveners here, spent hundreds of millions of dollars to build transmission facilities to carry wind power to population centers in Oklahoma and other states. [00:02:10] Speaker 04: As few of the commissioners recognized and reluctantly going along with the reversal orders here, the commission's position creates a huge windfall to some market participants who take service under the upgrades we built without having to pay for it. [00:02:25] Speaker 06: And a huge- Can I, I'm sorry to interrupt you, but I wanted to ask you this question, but your sentence caused me to ask it now. [00:02:34] Speaker 06: Okay. [00:02:35] Speaker 06: In their brief, the responding intervenors, they say, [00:02:38] Speaker 06: It is not a question of whether the funders will receive reimbursement, but when. [00:02:45] Speaker 06: In other words, they're saying that this case is only about whether payment will be now or over a period of time in the future. [00:02:52] Speaker 06: Is that correct? [00:02:53] Speaker 06: In other words, they're saying there is no windfall. [00:02:58] Speaker 06: The question is just when. [00:03:01] Speaker 04: Well, I think the first immediate answer to that question is we're going to have to pay back. [00:03:06] Speaker 04: If these orders are implemented, as the commission seems to be suggesting, we're going to have to pay tens of millions of dollars back with interest to these respondents. [00:03:16] Speaker 04: It's going to be a windfall when they receive those tens of millions of dollars back. [00:03:20] Speaker 06: I still don't get the windfall. [00:03:22] Speaker 06: Where's the windfall? [00:03:24] Speaker 06: I don't understand the windfall. [00:03:26] Speaker 06: As I read the Z2, they say here, they say, [00:03:31] Speaker 06: I didn't read you the rest of the sentence. [00:03:33] Speaker 06: It says the reason is just there's no windfalls because FERC's orders do not preclude such entities from being eligible to receive reimbursement prospectively and continuously until they receive full reimbursement. [00:03:48] Speaker 06: Is that not accurate? [00:03:49] Speaker 04: I think it's not, I think there are two answers to that, your honor. [00:03:54] Speaker 04: And this is also something, by the way, that the implementation of Z2 is very, very complicated. [00:04:01] Speaker 06: Would you just stick with this question? [00:04:02] Speaker 06: Right. [00:04:04] Speaker 06: Help us understand just this question, which is, as I understand it, this is under attachment Z2, they'll be fully reimbursed. [00:04:20] Speaker 04: There's no guarantee that we will be fully reimbursed. [00:04:24] Speaker 04: Why not? [00:04:25] Speaker 04: Because we don't know exactly who is going to take service in the future under this. [00:04:32] Speaker 04: For example, the lines are fully subscribed now. [00:04:35] Speaker 04: Z2 allows payment from future customers. [00:04:39] Speaker 04: It's a very complicated process in which [00:04:42] Speaker 04: Perhaps over the next 30 or 40 years, we'll recover all of it. [00:04:46] Speaker 04: We don't know that for sure until we see exactly how it's implemented. [00:04:50] Speaker 04: The one thing we do know for sure is if these orders are affirmed, we will have to pay back all the money that was paid to us for the service provided under this historical period. [00:05:02] Speaker 06: C2 is part of the tariff, right? [00:05:06] Speaker 06: That's correct. [00:05:07] Speaker 06: Well, then wouldn't it violate the tariff for you not to be fully reimbursed? [00:05:12] Speaker 04: Well, I'm sorry, I don't want to get too far into this. [00:05:17] Speaker 04: Obviously, if this decision goes against us, we would like to think that sometime in the future, whenever that is, we'll get all that money back. [00:05:29] Speaker 04: But we just, at this point, I don't think have any [00:05:32] Speaker 04: clear knowledge that that will absolutely happen because of the way the tariff works. [00:05:38] Speaker 04: And I guess all I can say is it's a very complicated process that requires the SPP to determine who is going to be using that [00:05:48] Speaker 04: that facility in the future, and then do the calculations of the payment. [00:05:52] Speaker 04: And of course, I think in our case, it's a couple hundred million dollars. [00:05:56] Speaker 04: Yes, we're entitled to keep collecting until we get it back, you know, decades in the future, perhaps, but we have no guarantee that we're paying back. [00:06:07] Speaker 06: I'm sorry. [00:06:11] Speaker 06: With interest, right? [00:06:14] Speaker 04: I think that's an issue that's being disputed between the parties. [00:06:20] Speaker 06: What about Judge Walker's question? [00:06:25] Speaker 03: You just keep saying decades, but it took eight years to accumulate this much money. [00:06:29] Speaker 03: Why would it take a lot longer than eight years to accumulate it again? [00:06:36] Speaker 04: Because we've only collected a portion of it. [00:06:41] Speaker 04: we've only collected a portion of it that then has to be allocated in the future. [00:06:46] Speaker 04: And again, I admit I have not worked out all of the calculations future. [00:06:52] Speaker 04: All I know is, and this is why the implementation has been delayed at FERC while we're waiting to determine whether we have to pay back the money to start with is it's gonna be an extremely complicated process to figure out exactly how and when [00:07:07] Speaker 04: we were going to, we will be able to get that money paid back in the future if we have to pay it, if we have to pay it back now. [00:07:13] Speaker 04: Yes, I mean, yes, we are hoping that if we have to pay the money back, that will be put in and we'll be able to get some of it back in the future. [00:07:22] Speaker 04: I just can't tell you, as I sit here today, that we're guaranteed to get all of that back going forward. [00:07:28] Speaker 01: Mr. Longstreet, can you [00:07:29] Speaker 01: Can you help me understand how the upgrade charges are passed along? [00:07:36] Speaker 01: So FERC says that upgrade costs arise when transmission occurs. [00:07:41] Speaker 01: So if these upgrade charges had been passed along in the monthly bills, what is the connection between those charges and the transmission in terms of the billing? [00:07:53] Speaker 01: How do they work together? [00:07:56] Speaker 04: Okay. [00:07:58] Speaker 04: Again, this is starting to get into the complexities of the tariff and it may be that Mr. Bonatt is in a better position to talk about exactly how that works out. [00:08:09] Speaker 01: I think it's important for the terms, right? [00:08:12] Speaker 01: Because there's a sense in which on the plain meaning an upgrade charge sounds like something different than a transmission rate. [00:08:20] Speaker 01: I mean, the upgrade charges are for reimbursements for infrastructure, whatever infrastructure means, investments. [00:08:29] Speaker 01: But whereas transmission rates are for the actual transmission of the energy. [00:08:37] Speaker 01: So I guess I'm trying to understand how those things are connected. [00:08:41] Speaker 04: No, and well, this is transmission. [00:08:44] Speaker 04: So it's just basically a different way to pay for the transmission. [00:08:48] Speaker 04: The problem here was that they needed a new mechanism for allocating the cost of this transmission that was constructed because we didn't have an identifiable customer base. [00:09:02] Speaker 04: You have a situation where the wind power is out in our case in Western Oklahoma. [00:09:06] Speaker 04: The population centers are in Eastern Oklahoma. [00:09:09] Speaker 04: And what we have to do is sort of build it on spec. [00:09:13] Speaker 04: And so OG&E is putting the money forward to build this. [00:09:18] Speaker 04: It's gonna be using it, but then there are gonna be other customers using it. [00:09:21] Speaker 04: We don't know who those are until we build it. [00:09:24] Speaker 04: So Attachment Z2 was basically a different mechanism to allow us to collect for the transmission, but it's still transmission. [00:09:31] Speaker 04: It's transmission, their transmission facilities, their infrastructure, they're put on the grid, [00:09:36] Speaker 04: just like any other transmission facilities. [00:09:39] Speaker 04: It's just that because when those transmission facilities were built, we didn't know who the customers were going to be. [00:09:45] Speaker 04: We had to have this new mechanism, kind of an innovative mechanism, like FERC said it wanted later under Order 1000, to make sure that this transmission was built so that the wind power could get carried. [00:09:56] Speaker 01: That explanation then seems to undercut your argument that 171 doesn't apply to Z2. [00:10:05] Speaker 04: I hope it doesn't. [00:10:08] Speaker 04: I don't think it does. [00:10:10] Speaker 04: I mean, 171 is just not applicable here in our view because there was no actual data available at the time until they built it in 2016. [00:10:27] Speaker 04: I don't understand why the fact that it's transmission or not transmission goes to that issue. [00:10:33] Speaker 04: What 171 says is that SPP is required to build within, I'm sorry, required to build within one year of the time the actual data is made available. [00:10:44] Speaker 04: The actual data was made available in 2016 and that's when they build. [00:10:49] Speaker 04: So we never thought really that there was a 171 problem to start with and no one else did either. [00:10:55] Speaker 04: One of the interesting things about this case is no one raised 171 at this time when all the stakeholders were figuring out how to charge for the [00:11:06] Speaker 04: energy, the transmission service that was being taken during this period that SPP was working out. [00:11:12] Speaker 04: No one raised their hand and said, 171 makes all of this a charade and no one ever is going to get paid for this eight-year period that we're working this out. [00:11:22] Speaker 04: It was only raised after the fact. [00:11:24] Speaker 04: And to me, that's fairly powerful evidence that, as we argue, 171 was never intended to apply to this situation where S.P.P. [00:11:33] Speaker 04: couldn't figure out how much to charge until they worked out how to implement this new, implement this new collection system, this new provision. [00:11:46] Speaker 01: Can I just ask, would Oklahoma Gas have a separate contractual claim against S.P.P.? [00:11:51] Speaker 01: ? [00:11:51] Speaker 01: if it doesn't recover? [00:11:54] Speaker 04: We have and obviously this is yes we do and as a matter of fact we have brought a complaint against SPP. [00:12:05] Speaker 04: Of course that complaint will probably go away if there's a reversal here because we'll get the money [00:12:11] Speaker 04: that we were entitled to under the tariff and under the contract. [00:12:14] Speaker 04: Yes, we have a separate contractual claim. [00:12:17] Speaker 04: Yes, Mr. Barnett will tell you they are vigorously opposing that claim in no small part because SPP is a pass-through entity. [00:12:25] Speaker 04: They collect money and then from the customers and transmit and then give it back. [00:12:31] Speaker 04: So their view is we could have a claim against them for a $20 million and Mr. Barnett will tell you how do we pay this? [00:12:36] Speaker 04: We're a pass-through entity. [00:12:38] Speaker 04: We'd have to charge market for it somehow. [00:12:40] Speaker 04: And our view is you should charge the people who use the service. [00:12:44] Speaker 04: That's what we're here for. [00:12:46] Speaker 06: I need to take you back to one of your answers to Jojo Al. [00:12:48] Speaker 06: I just didn't quite understand what you say. [00:12:50] Speaker 06: Were you saying when she asked you whether or not 1.7.1 applies here, whether Z2 covered, aren't Z2 charges, you're not arguing that Z2 charges [00:13:06] Speaker 06: aren't charges for services out of the tariff, right? [00:13:09] Speaker 06: They are, aren't they? [00:13:11] Speaker 04: Yeah, that is correct. [00:13:12] Speaker 06: That's correct. [00:13:13] Speaker 06: So then I don't understand your argument that this isn't covered by 1.7.1. [00:13:18] Speaker 04: Well, I mean, it's covered by 1.7.1. [00:13:22] Speaker 04: I'm sorry, you're right. [00:13:23] Speaker 04: I guess what I meant by applicability is it's not that 1.7.1 doesn't apply to transmission charges, transmission charges. [00:13:33] Speaker 04: We're saying, I guess a better way to set it, you're right, Your Honor, is, you know, the provision [00:13:39] Speaker 04: is applicable to charges for transition service, but it doesn't act as a bar here. [00:13:46] Speaker 04: When I say it doesn't apply, it didn't require a waiver here, as SPP said. [00:13:50] Speaker 04: They said they were doing it out of bundles of caution because, in fact, there was no violation of 171. [00:13:56] Speaker 04: 171 requires the payment within a year after the actual data is available. [00:14:02] Speaker 04: The actual data was not available until 2016. [00:14:05] Speaker 04: So you're right, when we say an applicable- Well, what about the commission? [00:14:08] Speaker 06: The commission is interpreted, the commission says that I'm confused about why you think a waiver wasn't needed. [00:14:16] Speaker 06: Under 1.171, the invoices are supposed to be submitted, quote, for the charges. [00:14:26] Speaker 06: charges for all services under the tariff during the preceding month. [00:14:31] Speaker 06: These were not charges during the preceding month. [00:14:41] Speaker 04: Yeah, I think so because that, you know, FERC, well, I probably should have said that better too, but no, I think that it's two separate paragraphs. [00:14:51] Speaker 04: So the invoices have to be issued and the invoices have to be issued, but there's nothing that says those invoices can't be corrected as actual data becomes available later. [00:15:03] Speaker 06: The time bar is- But this isn't that kind of case, is it? [00:15:06] Speaker 06: This isn't an inadequate data case, is it? [00:15:10] Speaker 04: Well, I think it's exactly an adequate data case because the whole point of this was that SPP did not have the data to know how much to charge for this service. [00:15:20] Speaker 04: That's what the period of time and it obviously went on longer than anybody wanted, including us who wasn't getting paid. [00:15:26] Speaker 04: But that was the whole point, the data wasn't available until 2016. [00:15:32] Speaker 04: I mean, I think with all due respect, I think the commission kind of confused the issue a little bit by pointing to these invoices and the monthly invoices. [00:15:42] Speaker 04: The point of that is, yes, we issue, SPP issues the invoices every month, but there's nothing in that invoice procedure that bars SPP from coming and [00:15:52] Speaker 04: billing later when it has the actual data, that time bar provision that they're really hanging their hat on, that's in the separate paragraph. [00:16:01] Speaker 04: And that separate paragraph makes clear that the one-year bar does not start until the actual- I agree with you about that. [00:16:10] Speaker 06: I think you're right about that. [00:16:12] Speaker 06: But the commission is relying on the quote during the preceding month language. [00:16:16] Speaker 06: That's their- Yeah, they are. [00:16:17] Speaker 06: And you have to [00:16:19] Speaker 06: This is an interpretation of a tariff. [00:16:22] Speaker 06: So, you know, our deference to the commission in these tariff cases is pretty deep. [00:16:27] Speaker 06: Yeah, I'm going to say that that's an unreasonable interpretation. [00:16:31] Speaker 04: Well, no, I think we have to say that it violates, well, I mean, that is one thing we can say. [00:16:36] Speaker 04: I think what we are also saying very clearly, and we said it very clearly to FERC and FERC didn't deal with it, is that under the plain meaning of the tariff, the one-year bar, and that's what's really at issue here. [00:16:49] Speaker 04: What's at issue here is, because FERC let us go back one year. [00:16:52] Speaker 04: In 2016, they let us go back one year. [00:16:55] Speaker 04: They said, you can't go back [00:16:56] Speaker 04: further because of this one year bar. [00:16:58] Speaker 04: The problem with FERC reasoning is that the one year bar doesn't start until actual data is available and the actual data wasn't available until 2016. [00:17:09] Speaker 04: We made that argument, SDP made that argument specifically to FERC and they never dealt with it. [00:17:14] Speaker 04: If you look at paragraph 21 of the rehearing order, they're talking about something completely different. [00:17:19] Speaker 04: They never deal with that plain meaning argument. [00:17:22] Speaker 06: So since they didn't deal with it, you don't have to defer to them. [00:17:26] Speaker 06: Unless either of my colleagues has any questions, you're well over time. [00:17:30] Speaker 03: Thank you very much. [00:17:32] Speaker 03: Okay, thank you. [00:17:40] Speaker 06: Mr. Bennett. [00:17:42] Speaker 07: Yes, good morning, your honor may please the court and that the net arguing on behalf of petition or Southwest Powerful D. And I'd like to begin with Judge table your first question regarding whether this is really a matter of timing recovery versus recovery overall. [00:17:59] Speaker 07: I think the interveners on FERC side are wrong about this being only an issue of timing for several reasons. [00:18:05] Speaker 07: One of which is that attachment to Z2 does not actually guarantee full 100% recovery. [00:18:11] Speaker 07: What it guarantees is eligibility to recover from those customers whose subsequent transmission service requests require that line in order to provide that service. [00:18:22] Speaker 07: And so once that condition is met, the project sponsors are eligible for their reimbursement. [00:18:29] Speaker 07: However, those reimbursements under attachment to network transmission service are based on annual revenue requirements of those projects. [00:18:37] Speaker 07: And so if you have a year, if you have an annual revenue requirement for a certain year, but you don't collect any revenues. [00:18:45] Speaker 07: fill that revenue requirement that revenue requirement is essentially gone. [00:18:49] Speaker 07: So for years where OG&E had a revenue requirement for example for their wind speed transition project, but that project is not receiving any sort of cash procedure credits, those revenue requirements are effectively gone. [00:19:00] Speaker 07: So while there is no guarantee under Attachment Z2 that even if we had implemented it on time, OG&E would be 100% compensated. [00:19:09] Speaker 07: The fact that FERC has essentially removed seven years worth of their eligibility for Attachment Z2 credit makes it even much harder for them to be reimbursed, which is exactly what the tariff anticipates and is intended to fill. [00:19:26] Speaker 07: So really, there is harm for OGE and other project sponsors here because their ability to get attachment DQ credits and be reimbursed is made much harder. [00:19:40] Speaker 07: And to get to Judge Rao's question to Mr. Longstrap about charges versus rates, these tariff rates are incredibly complex and they include multiple components. [00:19:56] Speaker 07: Customers pay for a portion of the transmission orders existing legacy facilities that have been in service for years. [00:20:02] Speaker 07: They pay for these upgrades that project sponsors like OG&E provide to SPP. [00:20:08] Speaker 07: They're also paying for projects that are planned by SPP and cost allocated around the region. [00:20:13] Speaker 07: So, you know, to say that these charges are separate from rape, I don't think is a fair characterization. [00:20:19] Speaker 07: However, and this really speaks to the last issue that Mr. Longstrap was discussing. [00:20:26] Speaker 01: Mr. Bennett, if I can just ask you, I guess maybe my question was also our, I mean, [00:20:33] Speaker 01: Z2 talks about revenue credits, right. [00:20:37] Speaker 01: So our revenue credits also part of service transmission, because it sounds like something different, you know, just to me not being a FERC expert. [00:20:50] Speaker 07: Yeah, so, so the revenue credits. [00:20:53] Speaker 07: are SPP's mechanism to pay these project sponsors back. [00:20:57] Speaker 07: So a transmission owner that owns the traditional transmission facilities that we provide service on, they provide SPP with an annual revenue requirement. [00:21:06] Speaker 07: And then there's a formula in the tariff that determines how those transmission owners receive a portion of the money SPP takes in. [00:21:15] Speaker 07: And it's based on various [00:21:17] Speaker 07: you know, formula set forth in the tariff. [00:21:19] Speaker 07: So for project sponsors like OG&E, the mechanism to compensate them is the revenue credit. [00:21:26] Speaker 07: But what we collect from the customer is what we call the credit payment obligation. [00:21:31] Speaker 07: I don't believe that's a term that's defined in the tariff, but that is a term that we use in our briefs and our [00:21:36] Speaker 07: So we collect those credit payment obligations based on this complex system that we developed to calculate. [00:21:47] Speaker 01: And you agree with Mr. Longstreet that all of that is encompassed in 171's charges for all services furnished under the tariff. [00:21:57] Speaker 07: Well, those are a component of transmission service charges, yes. [00:22:01] Speaker 07: And so I think that is correct. [00:22:03] Speaker 07: And so if you read the first sentence of section 1.7.1 in isolation, which is what HIRC does in their brief, yes, it says that SBP is required to furnish a bill. [00:22:15] Speaker 07: But it does say for charges for all services. [00:22:19] Speaker 07: It does not say for all charges, or else those charges are forever forfeited. [00:22:23] Speaker 07: order to look for the time limit. [00:22:26] Speaker 01: That is my question in part, right, is whether these credits are services furnished under the tariff during that month. [00:22:37] Speaker 07: Yes, the credits pay for service that was provided over OG&E's transmission line. [00:22:43] Speaker 07: But in order to get to the when SPP can no longer recover those charges, you really need to look at the second paragraph. [00:22:50] Speaker 07: It has one year time provision and that time provision unambiguously in our view doesn't kick in until after SPP has rendered a bill reflecting the actual data. [00:23:01] Speaker 07: And as the long portrait history of this case lays out, SPP struggled for years, first to determine how in detail to calculate those charges, and then subsequently had to go through two different software vendors in order to develop the complicated systems that actually make the charges. [00:23:19] Speaker 06: The commission relies on an earlier sentence in 171, during preceding month sentence. [00:23:27] Speaker 07: Right. [00:23:28] Speaker 06: And that- Why is that- Why is your interpretation of the tariff unreasonable? [00:23:36] Speaker 07: Their interpretation of the tariff is unreasonable because that sentence is really only talking- That's only really setting up how SDP builds. [00:23:43] Speaker 06: Wait, it says- It says- It says- It says- Wait, let me get the volume to share. [00:23:52] Speaker 06: It says- [00:23:57] Speaker 06: Okay, it says, after the first day of each month, the provider shall submit an invoice to the customer for the charges for all services furnished under the tariff. [00:24:09] Speaker 06: Those are Z2, right? [00:24:10] Speaker 06: All services under the tariff, right? [00:24:12] Speaker 06: That's Z2. [00:24:13] Speaker 07: Z2 itself is not a service. [00:24:15] Speaker 07: I mean, Z2 is a component. [00:24:17] Speaker 06: I understand that, but they are services furnished under the tariff, right? [00:24:29] Speaker 07: right to the extent that, for example, Excel took transmission service during a month and that transmission service required a lot of different facilities to. [00:24:40] Speaker 06: Okay, whatever it is, whatever it is, it has to be billed. [00:24:46] Speaker 06: It has to be billed. [00:24:48] Speaker 06: It has to be billed. [00:24:53] Speaker 06: those charges during the preceding month have to be billed within a reasonable amount of time, right? [00:24:59] Speaker 07: Isn't that what it says? [00:25:00] Speaker 07: What needs to be billed is the charges for Excel's transmission service. [00:25:04] Speaker 07: And that provision, and no one's denying that XL received the bill. [00:25:09] Speaker 07: And I think the issue is, was that bill complete? [00:25:12] Speaker 07: And that sentence does not talk about the completeness of the bill. [00:25:16] Speaker 07: All it said was for all services. [00:25:18] Speaker 07: XL took transmission service. [00:25:19] Speaker 07: If they took point-to-point service and network service, those would be two different transmission services, but they were both billed in that same bill. [00:25:27] Speaker 06: But just, I don't want to belabor this. [00:25:29] Speaker 06: I don't want to belabor this. [00:25:29] Speaker 06: Maybe just try once more. [00:25:31] Speaker 06: Humanly here. [00:25:34] Speaker 06: are expenditures under Z2 for quote, services furnished under the tariff? [00:25:44] Speaker 07: And so XL received a bill for the services. [00:25:47] Speaker 06: No, I didn't hear your answer. [00:25:48] Speaker 06: Are they not? [00:25:50] Speaker 07: Oh, I apologize. [00:25:52] Speaker 07: Can you hear me better? [00:25:53] Speaker 06: Now, I got you, yes. [00:25:54] Speaker 07: Yeah, sorry about that. [00:25:57] Speaker 06: They are, right? [00:25:57] Speaker 06: Or are they not? [00:25:58] Speaker 07: Yes, they are. [00:26:00] Speaker 06: Okay, thank you. [00:26:02] Speaker 03: Can I pick up on- [00:26:05] Speaker 03: Go ahead, but then I have a follow up question. [00:26:08] Speaker 07: I was, I was just gonna say that I know that I'm over time here. [00:26:13] Speaker 07: Yes. [00:26:15] Speaker 07: even if the court determines that SPP's interpretation of the tariff is erroneous, I still think that, you know, we do have our arguments regarding notice. [00:26:25] Speaker 07: I mean, these customers are now claiming surprise at the end of the process. [00:26:31] Speaker 03: Let me add one hypothetical that follows up on Judge Taylor's line of questioning. [00:26:36] Speaker 03: Take this first sentence from 171 that you've been discussing. [00:26:43] Speaker 03: And imagine it's a cable bill. [00:26:45] Speaker 03: Imagine I'm the cable customer and Comcast, let's say, is the cable company. [00:26:51] Speaker 03: And the rule is that within a reasonable time after the first day of each month, Comcast shall submit an invoice to the customer for the charges for all services furnished under the tariff during the preceding month. [00:27:07] Speaker 03: Now, if we just look at that, then I as a cable customer have to get my bill for April [00:27:12] Speaker 03: sometime in May. [00:27:14] Speaker 03: And now along comes Z2. [00:27:16] Speaker 03: And you're saying, well, Z2 changes that. [00:27:21] Speaker 03: Z2 allows Comcast to bill me for some charge that was for a service in April of 2020, and they can bill me in April of 2028. [00:27:35] Speaker 03: And there's something in Z2 that allows that. [00:27:40] Speaker 03: If that's what you're saying, my question to you is, point me to the text in Z2 that allows that. [00:27:48] Speaker 07: And I appreciate that. [00:27:49] Speaker 07: It's not actually the text that's in Z2, Your Honor. [00:27:52] Speaker 07: It's actually the text that's in section 1.7.1 in the second paragraph, which says that the one-year clause does not begin to run until SPP has rendered the bill reflecting the actual data. [00:28:04] Speaker 03: Because SPP didn't have that. [00:28:06] Speaker 03: OK, so let me read that. [00:28:08] Speaker 03: Because billing adjustments, [00:28:11] Speaker 03: for reasons other than A or B shall be limited to those corrections and adjustments found to be appropriate for such service within one year after the rendition of the bill reflecting the actual data for such service. [00:28:25] Speaker 03: So which exception do you think that this falls under A or B? [00:28:29] Speaker 07: It doesn't fall under either exception, Your Honor. [00:28:31] Speaker 07: It's the general rule that the [00:28:36] Speaker 07: Bills reflecting actual data were not actually rendered until 2016 because prior to that, S&P lacked the ability to calculate that data. [00:28:45] Speaker 03: But then that just takes us back to the preceding paragraph, which says you have to submit either actual data or estimated data within a reasonable time after the first day of each month. [00:28:57] Speaker 07: it does not say that it says that STP has to render a bill for the service. [00:29:02] Speaker 07: It does not say that that bill is final or that that bill necessarily has to reflect, excuse me, each and every charge. [00:29:09] Speaker 07: That's why we have the actual data language. [00:29:11] Speaker 07: But if that data is available later, we can include that in the bill. [00:29:15] Speaker 07: And the second part of the paragraph on section [00:29:19] Speaker 07: The second part of the first paragraph, section 1.7.1 says that invoices may be issued using estimated data. [00:29:25] Speaker 07: It doesn't say that they have to be issued using estimated data. [00:29:28] Speaker 03: So, okay. [00:29:29] Speaker 03: Well, no, it says to the, oh, go ahead. [00:29:31] Speaker 03: No, no. [00:29:32] Speaker 03: I know we're over, we're well over time. [00:29:34] Speaker 03: Are you finished? [00:29:35] Speaker 06: I mean, I don't want to interrupt you. [00:29:37] Speaker 03: No, I'm good. [00:29:38] Speaker 06: Thank you. [00:29:39] Speaker 06: All right. [00:29:39] Speaker 06: Naomi, you got anything? [00:29:40] Speaker 01: No, that's fine. [00:29:41] Speaker 06: Okay, great. [00:29:42] Speaker 06: All right. [00:29:43] Speaker 06: We'll hear from the commission. [00:29:49] Speaker 02: Good morning, your honors. [00:29:51] Speaker 02: I'm hoping you can hear me. [00:29:52] Speaker 02: Thank you. [00:29:54] Speaker 02: I'm going to start with this actual data language in filling procedure 1.7.1. [00:30:03] Speaker 02: If you look at the estimated data sentence in the first paragraph of 1.7.1, which says, invoices may be issued using estimated data to the extent actual data is not available [00:30:16] Speaker 02: by the fifth working day of the month following service. [00:30:20] Speaker 02: And then it says adjustments reflecting the difference in billing between the estimated and actual data will be included on the next regular invoice. [00:30:29] Speaker 02: Again, following on with the, you have to get this all done within a month. [00:30:33] Speaker 02: If you have to use estimated data, you can use estimated data, but you have to provide the actual data in the next month. [00:30:41] Speaker 02: And then the next paragraph, which talks about the one year time limits, [00:30:46] Speaker 02: says that billing adjustments for reasons other than those two exceptions that don't apply shall be limited to those corrections and adjustments found to be appropriate for such service within one year after rendition of the bill reflecting the actual data for such service. [00:31:02] Speaker 02: Actual data there refers back to the short time period after which you replaced actual data, the estimated data with actual data, all happening in a very short time period, not a matter of years. [00:31:16] Speaker 02: So that's what the actual data is talking about here. [00:31:21] Speaker 02: Not actual data you can sit and wait for eight years and come up with actual data and then come back and have these bills be not final this entire time. [00:31:32] Speaker 02: So I'm hoping that that resolves what actual data is about. [00:31:37] Speaker 03: In OG&E's reply brief, [00:31:41] Speaker 03: They have a block code on page six. [00:31:45] Speaker 03: And I wondered if you could reply to their reply here. [00:31:50] Speaker 03: They're quoting Canadian Association of Petroleum Producers, which itself is quoting natural gas clearinghouse. [00:32:00] Speaker 03: And it's two sentences. [00:32:03] Speaker 03: So long as the parties have adequate notice that surcharges might be imposed in the future, [00:32:10] Speaker 03: imposition of surcharge does not violate the filed rate doctrine. [00:32:14] Speaker 03: The filed rate doctrine simply does not extend to cases in which buyers are on adequate notice that resolution of some specific issue may cause a later adjustment to the rate being collected at the time of service. [00:32:28] Speaker 03: I suspect that you have a way that you can distinguish that case. [00:32:34] Speaker 02: I'm sorry, I didn't actually find the quote, but I think I understood what you were talking about, Your Honor. [00:32:40] Speaker 02: The commission found that there was not adequate notice here to satisfy the filed rights doctrine or retroactive rate making requirement. [00:32:48] Speaker 03: I'm a little bit confused on that too, because on the next two pages of their reply, maybe I have the page numbers wrong, but I think it's seven and eight that I'm on now. [00:32:56] Speaker 03: They've got two quotes from your brief. [00:33:00] Speaker 03: that seem to be in some tension. [00:33:03] Speaker 03: So I'll read the two quotes. [00:33:05] Speaker 03: One of the quotes is talking about upgrade sponsors. [00:33:08] Speaker 03: And it says they could not reasonably have expected that their upgrade costs would be reimbursed. [00:33:14] Speaker 03: So that's what you just said a moment ago. [00:33:16] Speaker 03: But then it looks like there's also quotes saying customers may have been aware from the stakeholder proceedings and study report negotiations that SPP ultimately intended to implement the crediting procedure retroactively [00:33:30] Speaker 03: or the historical period. [00:33:33] Speaker 03: So do you see the tension there and how do you resolve that? [00:33:37] Speaker 02: No, there is no tension there, your honor. [00:33:39] Speaker 02: And I'm sorry if my brief caused some confusion. [00:33:44] Speaker 02: No, the commission's point was there can be notice and there can be notice that's adequate to satisfy the filed rate doctrine or the rule against retroactive rate making. [00:33:55] Speaker 02: And so while there might have been notice [00:33:58] Speaker 02: that that was FTP's intent, FTP's statements, one-sided statements saying that is not sufficient. [00:34:09] Speaker 02: What the court has found, what this court has found is that matters that are not on file with the commission do not satisfy the notice required for the filed rape doctrine. [00:34:28] Speaker 02: Federal Power Act section 205D requires that all rates be on file with the commission and any changes to those rates be on file with the commission. [00:34:40] Speaker 02: I mean, not just rates, but rules as well. [00:34:42] Speaker 01: Yes, Your Honor. [00:34:42] Speaker 01: So adequate notice means notice provided through some type of filing with FERC. [00:34:49] Speaker 02: That is one of the ways to do it. [00:34:51] Speaker 02: There are other ways, none of which applies here as well. [00:34:55] Speaker 02: For example, if there's a judicial proceeding [00:34:57] Speaker 02: regarding the matter or it's a formula or proceeding or it's a formula or actual actual notice is not enough. [00:35:06] Speaker 02: Actual notice could be enough. [00:35:09] Speaker 02: It's not necessarily enough. [00:35:10] Speaker 02: Your honor. [00:35:11] Speaker 03: That's helpful. [00:35:12] Speaker 06: Can I, can I take you back to the debate we were having about whether this case is just about timing the payment? [00:35:21] Speaker 02: Sure. [00:35:21] Speaker 02: Absolutely. [00:35:22] Speaker 02: Um, what's the para provision provide? [00:35:26] Speaker 02: What Z2 provides, if you look at page A11 of the petitioner's brief, on the opening brief, the very first sentence says, an upgrade sponsor shall be eligible to receive revenue credits in accordance with Z2. [00:35:44] Speaker 02: And then the next sentence says, costs are recoverable from new transmission service using the facility as defined until the amount owed the upgrade sponsor is zero. [00:35:55] Speaker 02: So it's just all about timing, right? [00:35:57] Speaker 02: It is all about timing. [00:35:58] Speaker 02: And if there are concerns that because of the way article V2 is formulated now, that in the future upgrade sponsors won't be able to fully recover, which of course they weren't promised that in the first place, but they just promised eligibility. [00:36:16] Speaker 02: But if there are problems because of this revenue requirement issue, which I confess, I don't really understand what the issue is, but even if that's true, [00:36:24] Speaker 02: Z2 has been changed before and Z2 can be changed again. [00:36:28] Speaker 02: So if it's now based on these revenue requirements that might cause a problem with fuller recovery of the costs, upgrade sponsors paid, Z2 is changed in 2013, I believe it was changed in 2015, it can be changed again to take care of that problem. [00:36:48] Speaker 02: And I'm sure that the commission would entertain a filing to make a change such as that, as long as the commission found it to be just and reasonable. [00:36:59] Speaker 01: Skew, are there any differences in treatment under the filed rate doctrine between rate terms and non-rate terms? [00:37:08] Speaker 01: I mean, it seems to be the commission's position that there is not, but there are some earlier decisions of the commission. [00:37:14] Speaker 01: In Old Dominion itself, the underlying decision drew the possibility that there could be some distinction between rate and non-rate terms. [00:37:23] Speaker 01: Is that no longer the position of commission? [00:37:26] Speaker 02: I would say that [00:37:29] Speaker 02: As a general matter, I think that's probably true. [00:37:32] Speaker 02: I'm not saying that there is no non-rate term, the commission, I can't really speak for the commission in that sense, but I think the point is the filed rate is the filed rate and rates include the requirement to have filed [00:37:45] Speaker 02: have violence with the commission is not limited to race themselves, but to all of the rules and other things that go along with that, that would not necessarily be considered race. [00:37:53] Speaker 01: And so the commission's, so the commission previously was granting waivers as it did in this case, right? [00:37:59] Speaker 01: Which would allow for a form of retroactive rates to be applied. [00:38:04] Speaker 01: And so the commission's position now is that that is inconsistent with the statute. [00:38:10] Speaker 02: I think the commission also issued, you're absolutely right, your honor. [00:38:13] Speaker 02: No question the commission issued orders in which it addressed justice for waiver considerations without addressing the filed race doctrine and made mistakes doing so. [00:38:23] Speaker 02: And the commission has said so in its policy, its proposed policy statement that is mentioned in the petitioner's brief. [00:38:31] Speaker 02: And what the commission there said is, you know, [00:38:38] Speaker 02: It's worth hearing. [00:38:39] Speaker 02: I think the commission says paragraph one of the proposed policy statement of 171 FERC 61156, the commission's waiver orders have sometimes drifted beyond the limits imposed by the solid rates doctrine and the rule against retroactive rate making. [00:38:55] Speaker 02: And what the commission is proposed to do now is to, in paragraph 19 of that order, it says it will apply the four parts [00:39:06] Speaker 02: on the waiver analysis, but only in circumstances where it can determine that the filed rate doctrine and the retroactive rule against retroactive rate making won't be violated. [00:39:16] Speaker 01: So my question is, is FERC retroactively applying that new determination here to Oklahoma Gas? [00:39:25] Speaker 01: Because the only reason this went to FERC on remand was in light of Old Dominion. [00:39:31] Speaker 01: right, this court's decision in Old Dominion, but that decision didn't change the things that you have just discussed, FERC changed in its policy statement. [00:39:41] Speaker 01: So this was opened up on remand, but it doesn't seem that FERC was really addressing anything that happened in Old Dominion, it was just making a policy change [00:39:53] Speaker 01: you know, or a legal interpretive change about its authority under the filed right doctrine, which it's now applying in a sense retroactively to these parties. [00:40:02] Speaker 02: I don't think that's exactly right, Your Honor. [00:40:06] Speaker 02: What the Commission was reminded by from Old Dominion coming out. [00:40:12] Speaker 02: And again, remember, Old Dominion affirmed the Commission's determination not to allow a tariff waiver because [00:40:18] Speaker 02: of the filed rate doctrine. [00:40:20] Speaker 02: So the commission just was reminded, oh my gosh, we have a situation where we have a protest here. [00:40:26] Speaker 02: We have somebody bringing us to court. [00:40:29] Speaker 02: We do not have a defense for this. [00:40:31] Speaker 02: So it's not a matter. [00:40:32] Speaker 02: It's literally the commission now complying with what this court's president already has said for a long time. [00:40:38] Speaker 02: And many of FERC's decisions have said for a long time. [00:40:41] Speaker 01: Sometimes we just didn't comply with the file great doctrine in our orders and we recognize that now, and we're not going to continue to do so are you going to go back and reopen other decisions that were made granting waivers in similar circumstances. [00:40:56] Speaker 01: I mean, I guess I'm wondering why these parties have their proceedings reopened in this circumstance. [00:41:03] Speaker 01: I mean, the commission, of course, is allowed to take a different position and explain itself reasonably. [00:41:08] Speaker 01: I'm not suggesting it doesn't have the authority to do that. [00:41:11] Speaker 01: But what about applying it to these parties who had already previously received a waiver? [00:41:18] Speaker 02: Your Honor, that was pending litigation. [00:41:20] Speaker 02: So this isn't a reopening of the case. [00:41:23] Speaker 02: The case was still pending in litigation. [00:41:25] Speaker 02: There was no finality to the commission's orders yet. [00:41:28] Speaker 02: The commission had issued what were final orders and asked for it back because the case is still open. [00:41:34] Speaker 02: So this isn't a circumstance where there was no court proceeding. [00:41:39] Speaker 01: The orders were final orders final with respect to FERC. [00:41:43] Speaker 01: I mean, there was litigation in this court, but that doesn't make the commission's [00:41:50] Speaker 01: decision on final, does it? [00:41:52] Speaker 02: The commission was faced with a circumstance of having to defend in defensible orders is really what it came down to. [00:41:58] Speaker 02: To grant waiver here without considering filed rates auction concerns that were readily apparent and the commission found it indefensible. [00:42:12] Speaker 02: I mean, that's why the commission brings back its orders because it thinks that something needs to be reconsidered. [00:42:16] Speaker 02: And the commission does not believe that that decision was made correctly. [00:42:20] Speaker 02: So this again, it wasn't final, the order stopping final once an appeal is made. [00:42:30] Speaker 02: It's true, once we filed the record, the commission could no longer issue an order without asking for the case to come back to the commission, but the orders were no longer final orders in the sense that they could not, the commission couldn't then reconsider its decision with leave of the court. [00:42:48] Speaker 02: And the court granted that leave. [00:42:50] Speaker 01: Right. [00:42:50] Speaker 01: It was unopposed by the parties. [00:42:52] Speaker 02: It was unopposed. [00:42:56] Speaker 06: Judge, are you done? [00:42:57] Speaker 06: Yes, I am. [00:42:58] Speaker 06: Thank you. [00:42:59] Speaker 06: Judge Walker, you have anything? [00:43:00] Speaker 03: If I could ask one question. [00:43:02] Speaker 03: No, go ahead. [00:43:04] Speaker 03: Just along those lines, OG&E or the petitioners reply at page 14 says you're continuing to grant these types of waivers with retroactive application. [00:43:15] Speaker 03: using the four-factor test without mentioning notice or the file of a doctor. [00:43:20] Speaker 03: And they say you're continuing to grant those types of waivers as recently as last Friday. [00:43:26] Speaker 03: Is that true? [00:43:27] Speaker 02: So this court's precedent in Brooklyn Union Gas, which is, excuse me, Your Honor, 409F3404 at 406. [00:43:44] Speaker 02: says that the court does not consider post-record commission orders in determining whether the orders before the court are reasonable. [00:43:53] Speaker 02: So all those orders, it is true. [00:43:58] Speaker 02: The commission did issue the orders in those circumstances without considering the filed rate doctrine matters. [00:44:06] Speaker 02: In each of those cases, there were no protests filed and no hearing requests were filed. [00:44:14] Speaker 02: I wouldn't want to have had to defend those cases in court either. [00:44:18] Speaker 02: So, you know, and the commission has issued this proposed policy statement, which is still in flux. [00:44:25] Speaker 02: It hasn't been finalized yet. [00:44:28] Speaker 02: And I'm speaking completely out of my, I think maybe the court commission's waiting. [00:44:33] Speaker 02: I have no idea, but maybe they're waiting for this decision to come out. [00:44:37] Speaker 02: and get a ruling from the court. [00:44:40] Speaker 06: Okay. [00:44:42] Speaker 06: Thank you. [00:44:43] Speaker 06: We'll hear from Mr. Lowell. [00:44:52] Speaker 08: May it please the court. [00:44:53] Speaker 08: My name is Joseph Lowell. [00:44:55] Speaker 08: I am Counsel for Xcel Energy Services and speaking today on behalf of the interveners for respondent. [00:45:01] Speaker 08: The interveners for respondent request that the court deny the petition for review of FERC's order. [00:45:08] Speaker 08: Each of the interveners on behalf of respondent are transmission service customers within SPP. [00:45:18] Speaker 08: Each of the interveners agreed to take transmission service from SPP. [00:45:24] Speaker 08: entered into service agreements with SPP for the transmission service, and then pursuant to the waiver orders were retroactively billed for Attachments Z2 credits in violation of Section 7.1 of the SPP tariff. [00:45:51] Speaker 08: To be clear, we interpret 7.1 as prohibiting any cost components of transmission service that should have been included in the bill to be billed beyond one year. [00:46:04] Speaker 08: These were transmission service charges that SGP was seeking to resettle. [00:46:12] Speaker 08: Their original waiver application makes this clear. [00:46:18] Speaker 08: We discussed reviewing all of the transmission service that occurred back to 2005. [00:46:22] Speaker 08: We discussed calling back revenues from transmission service that were provided to other transmission owners. [00:46:31] Speaker 08: And so this was a prohibited resettlement of transmission service charges going back all the way to 2008. [00:46:48] Speaker 08: The primary issue in this case is the notice issue. [00:46:52] Speaker 08: SVP and intervenors on behalf of us on the petitioner's side have argued that parties had noticed all along that this was the plan, that there was gonna be a resettlement of all the attachments, of all the transmission service charges to include the attachment C2 component. [00:47:13] Speaker 08: And this is not the case. [00:47:15] Speaker 08: It was their burden to demonstrate that such notice had been provided to PERC. [00:47:24] Speaker 08: What they provided is essentially their assertion that this was discussed during the stakeholder process. [00:47:34] Speaker 08: They have argued, they appointed to statements that excel energy services. [00:47:39] Speaker 08: We have made in our pleadings as a concession that we were aware of this. [00:47:45] Speaker 08: Now, what was really happening was STP did not know how to assess whether or not entities were using Attachment Z2 credible upgrade. [00:47:59] Speaker 08: And so there was no one knew that anyone, that we were taking service over these facilities and should have had to pay for them. [00:48:09] Speaker 08: The service itself or the way to identify the Attachment Z2 [00:48:15] Speaker 08: The people who should be reimbursed and the people who should pay was determined well after the tax. [00:48:25] Speaker 08: During the STP stakeholder process, what was happening was the stakeholders were trying to figure out a way to make the attachment to credit work, to identify the beneficiaries and the parties who should pay. [00:48:40] Speaker 08: Excel Energy Services did not understand, and it's true also for the other entrepreneurs on behalf of the respondents, that a resettlement going back up to eight years was contemplated as part of that. [00:48:53] Speaker 08: Excel Energy Services began to understand that in the second half of 2015, that having figured out how to identify the relevant parties, the parties who should be charged and the parties who should be compensated, [00:49:10] Speaker 08: that having figured that out through the software and the stakeholder process, the SAP intended to apply that backwards. [00:49:19] Speaker 08: We did not know ahead of time. [00:49:22] Speaker 01: It does seem hard to believe, Mr. Lowell, that if you're in a process discussing how these revenue credits are to be allocated over a period of time that you wouldn't be on [00:49:32] Speaker 01: some kind of actual notice that you were liable for those, for those costs of which, you know, the intervenors enjoyed the benefits of that service. [00:49:42] Speaker 01: That does seem, I don't know that that's dispositive here, but it does seem like a, it does seem hard to imagine that there was no actual notice to the intervenors. [00:49:54] Speaker 08: Well, it attached me to your honor speaks of how [00:50:00] Speaker 08: For each new transmission service request that would use a credible upgrade, SVP will determine whether that service could not have been provided but for credible upgrade. [00:50:14] Speaker 08: Now, this task force, the SVP committees, one of which was called the crediting process task force, was trying to figure out how conceptually they can do that. [00:50:25] Speaker 08: Given the volume of transmission service requests that were coming in, [00:50:29] Speaker 08: keeping in mind that transition customers in general pay a rolled in rate reflecting all the costs of the transmission system. [00:50:38] Speaker 08: And what we're trying to do here is isolate whether a new service could not be granted without that isolated facility to sponsor an upgrade. [00:50:50] Speaker 08: That concept is difficult. [00:50:56] Speaker 06: Any other questions from the colleagues? [00:51:00] Speaker 06: Thank you. [00:51:00] Speaker 06: So let's see. [00:51:02] Speaker 06: Mr. Longstreet and Mr. Bennett, you were both out of time, but you can each have one minute. [00:51:08] Speaker 04: Okay. [00:51:09] Speaker 04: Thank you, your honor. [00:51:11] Speaker 04: And I'll try to be very quick. [00:51:12] Speaker 06: One minute. [00:51:14] Speaker 06: Yeah. [00:51:15] Speaker 04: One minute. [00:51:17] Speaker 04: Ms. [00:51:17] Speaker 04: Pacella said actual notice may be enough, but it's not always enough. [00:51:21] Speaker 04: She didn't say it again. [00:51:25] Speaker 04: Ms. [00:51:25] Speaker 04: Pacello said that actual notice may be enough, but it's not always enough. [00:51:31] Speaker 04: As is cited in any case, nobody cited any case that people had actual notice that that's not enough. [00:51:36] Speaker 04: Old Dominion wasn't such a case. [00:51:38] Speaker 04: That was after the fact. [00:51:39] Speaker 04: West Deptford wasn't such a case. [00:51:41] Speaker 04: Here the obligation was known to everybody. [00:51:43] Speaker 04: Did they have actual notice? [00:51:45] Speaker 04: Of course they had actual notice. [00:51:47] Speaker 04: Joint Appendix 398, Excel said in its pleading, was fully aware of SPP's intent to implement this retroactively. [00:51:55] Speaker 04: The working group, he mentioned the working group, we cited this in our brief. [00:51:59] Speaker 04: January 2014, SPP must collect and pay all credits owed since May 2008. [00:52:06] Speaker 04: Record 32 page five, we didn't put it in the appendix, but one of the other protesters, there's a graph, 2011, the market group that all these people are part of, what's next? [00:52:20] Speaker 04: Credit stew back to May 2008 when FERC approved the but for condition, record 32 page five, everybody knew, that's why we were there for years, everybody knew this was going to be, [00:52:32] Speaker 04: collected back to 2008. [00:52:33] Speaker 04: That was the whole point. [00:52:34] Speaker 04: There's not a single case that when people have that kind of actual notice, the file break dock and prevents it from being collected. [00:52:42] Speaker 06: Mr. Mr. one first year, you're over time again. [00:52:48] Speaker 04: I'm sorry. [00:52:48] Speaker 06: Thank you, Mr. Bennett. [00:52:50] Speaker 06: Go ahead. [00:52:52] Speaker 07: Yes, thank you, Your Honor. [00:52:53] Speaker 07: And I would just pick up where Mr. Longstreet left off. [00:52:57] Speaker 07: Ms. [00:52:58] Speaker 07: Pacella said that actual notice is not available when there are one-sided statements from the RTO. [00:53:04] Speaker 07: This case does not involve one-sided statements. [00:53:06] Speaker 07: These customers participated in years and years of stakeholder meetings. [00:53:11] Speaker 07: We have records of their voting to endorse the approach that SDP ultimately booked. [00:53:15] Speaker 07: based on the presentations that Mr. Long's rep mentioned. [00:53:18] Speaker 07: This is not a case of SPP just saying, oh, we're gonna bill you. [00:53:21] Speaker 01: And these people said- Mr. Bennett, even if we assume that there was actual notice, can you point to a case in which the actual notice did not involve a filed rate with FERC where they took into account that actual notice? [00:53:35] Speaker 01: It seems to me that the cases that you cite involve notice involving some type of filing with FERC. [00:53:43] Speaker 07: I have a filing or some type of agreement, however, none of those cases say those are the only types of notice available. [00:53:48] Speaker 01: But can you cite a case in which notice was provided without a filing to FERC? [00:53:56] Speaker 01: Because I was not able to locate one, but perhaps there are some. [00:54:00] Speaker 07: Out off the top of my head, Your Honor. [00:54:02] Speaker 07: And if I could just make one more quick point just to sort of pick up on what Judge Walker and Judge Rawert were exploring. [00:54:10] Speaker 07: FERC prior to STP's waiver and in fact prior to the old Dominion waiver had previously granted [00:54:17] Speaker 07: or the Old Dominion case, rather, had previously granted waivers of this exact tariff provision. [00:54:22] Speaker 07: These parties had noticed that FERC viewed it as waivable. [00:54:25] Speaker 07: And FERC continues to this day to grant retroactive waivers. [00:54:30] Speaker 06: Mr. Bennett, we have an argument. [00:54:32] Speaker 06: Thank you. [00:54:33] Speaker 06: Thank you very much. [00:54:35] Speaker 06: Thank you all. [00:54:36] Speaker 06: The case is submitted.