FERC Order No. 717-A purports to “clarify” FERC’s Standards of Conduct governing the relationship between transmission providers and their marketing affiliates by limiting the ability of certain utility legal, finance and regulatory employees to serve both the marketing and the transmission sides of the business.  This order, if not stayed, takes effect November 23.

Until this clarifying order was issued, support services personnel, such as lawyers, could assist both marketing and transmission affiliates so long as they did not act as conduits of non-public transmission information.  Insofar as lawyers are at issue, this precedent was grounded in the understanding that lawyers are regularly entrusted with and required to protect confidential information. 

But FERC’s clarifying order now instructs that “an employee in the legal, finance or regulatory division of a jurisdictional entity, whose intermittent day-to-day duties include the drafting and redrafting of non-price terms and conditions of, or exemptions to, umbrella agreements is a ‘marketing function employee.’”   Since marketing employees must work independently of transmission employees and since the former are not permitted to have access to non-public information pertaining to the transmission grid, the new order appears to tell in-house attorneys (and possibly other professionals) involved in drafting marketing contracts — even if only “intermittently,” and not part of their regular duties — that they can no longer lawfully provide services to the transmission side of the business. 

The Edison Electric Institute has asked FERC for expedited clarification or rehearing of Order No. 717-A.