VIII. Trade Associations
A. Parties' Positions
Most parties would allow some trade associations that regularly appear before the Commission access to confidential records, but they differ on how to define eligible associations. At one extreme is IEP, which contends that all trade associations should have access to market sensitive information, even if they are market participants or have market participants as members.
TURN proposes a rebuttable presumption that any organization whose membership consists of more than 20-25% market participants should be viewed as a market participant, and that organizations with membership below this threshold be non-market participants.25
Edison, on the other hand, contends that "a trade organization is the sum of its parts."26 If the members are market participants, then the trade organization should be deemed a market participant. Thus, Edison asserts, CMTA, which includes merchant generators in its membership, is a market participant.
Similarly, SDG&E asserts that "providing sensitive market information to an association representing market participants is the same as providing such information directly to its market participant members. Even if the association does not pass on sensitive information to members directly, the association may well use this information (consciously or unconsciously) to advise members regarding the electricity marketplace."27
SDG&E rejects TURN's proposal for a percentage-of-members test as unworkable, noting that many associations do not make their membership public, or change membership constantly.
CMTA disputes that its attorneys and consultants cannot be trusted to abide by the terms of a protective order governing confidential data, citing D.06-06-066's conclusion on the same subject: "We do not think it right to assume that parties appearing before us cannot be trusted to abide by the terms of such documents [confidentiality agreement or protective order] absent evidence of a prior history of violation."28 CAC/EPUC also state that the Commission should not assume that information will be mishandled through inadvertence, or unconsciously: "Edison does not cite any concrete example of [such mishandling] happening with CMTA, CLECA, CAC, EPUC or any other trade association."29
Edison counters that it is not asserting that counsel or consultants would deliberately disobey a protective order and mishandle confidential information. Rather, Edison contends, it is difficult to ignore information once one has it, and unconscious use of the information could occur, to the investor owned utilities (IOUs) and ratepayers' detriment. "This is not a question of `ethics,' as IEP and CMTA would make it out to be. [Edison] trusts that most (but not all) market participants would not deliberatively violate a protective order."30 Edison quotes TURN's Michel Florio's testimony at the 2005 hearing: "I can promise not to disclose it, but I can't compartmentalize my brain and say, once I know something, I'll never use that knowledge, because it's just not humanly possible."31
B. Discussion
We discuss the status of particular groups in the next section. For groups not discussed there, we believe a test of the type TURN proposes is appropriate. A trade or other representative organization is a market participant if its primary purpose is to represent the interests of market participants. We will apply the following factors to determine whether an organization meets the test:
· The organization's primary focus in proceedings at the Commission is to advocate for persons/entities that purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations, and/or
· A majority of the organization's members purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations, and/or
· The organization was formed for the purpose of obtaining market sensitive information; and/or
· The organization is controlled or primarily funded by a person or entity whose primary purpose is to purchase, sell or market energy or capacity at wholesale; bid on, own, or purchase power plants; or bid on utility procurement solicitations.
Where an organization keeps its membership list secret, the organization will have the burden of proving that it is not a market participant. Where the membership list is available publicly, the party resisting access to its market sensitive data will bear the burden of proving that the organization is a market participant. Further, representatives of trade associations and similar organizations may be required to sign nondisclosure agreements or be bound by protective orders that preclude dissemination of market sensitive information to members who are market participants.
Finally, where we make a determination below that an organization is or is not a market participant, parties shall be bound by those determinations and shall not relitigate them in discovery disputes, unless the makeup of the organization materially changes.
25 TURN opening comments at 5.
26 Edison reply comments at 6.
27 SDG&E reply comments at 3.
28 D.06-06-066, mimeo., p. 58.
29 See also CLECA reply comments at 4.
30 Edison opening comments at 4.
31 Id. at 6, citing TURN/Florio Tr. 814:18-21.
