12
Opinion of the Court
sion service under a non-discriminatory transmission tariff on file with the Commission." Ibid.8
Third, FERC rejected a proposal that the open access requirement should apply to "the transmission component of bundled retail sales." Id., at 31,699. Although FERC noted that "the unbundling of retail transmission and generation . . . would be helpful in achieving comparability," it concluded that such unbundling was not "necessary" and would raise "difficult jurisdictional issues" that could be "more appropriately considered" in other proceedings. Ibid.
In its analysis of the jurisdictional issues, FERC distinguished between transmissions and sales. It explained:
"[Our statutory jurisdiction] over sales of electric energy extends only to wholesale sales. However, when a retail transaction is broken into two products that are sold separately (perhaps by two different suppliers: an electric energy supplier and a transmission supplier), we believe the jurisdictional lines change. In this situation, the state clearly retains jurisdiction over the sale of power. However, the unbundled transmission service involves only the provision of 'transmission in interstate commerce' which, under the FPA, is exclusively within the jurisdiction of the Commission. Therefore, when a bundled retail sale is unbundled and becomes separate transmission and power sales transactions, the resulting transmission transaction falls within the Federal sphere of regulation." Id., at 31,781.9
8 While it concluded that "the rates, terms, and conditions of all unbundled transmission service" were subject to its jurisdiction, FERC stated that it would "give deference to state recommendations" regarding the regulation of retail transmissions "when state recommendations are consistent with our open access policies." Order No. 888, at 31,689.
9 FERC also explained that it did not assert "jurisdiction to order retail transmission directly to an ultimate consumer," id., at 31,781, and that States had "authority over the service of delivering electric energy to
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