26
Opinion of the Court
As noted above, in both Order No. 888 and rehearing Order No. 888-A, FERC gave two reasons for refusing to extend its open access remedy to bundled retail transmissions. First, FERC explained that such relief was not "necessary." Order No. 888, at 31,699; see also Order No. 888-A, at 30,225. Second, FERC noted that the regulation of bundled retail transmissions "raises numerous difficult jurisdictional issues" that did not need to be resolved in the present context. Order No. 888, at 31,699; see also Order No. 888-A, at 30,225-30,226. Both of these reasons provide valid support for FERC's decision not to regulate bundled retail transmissions.
First, with respect to FERC's determination that it was not "necessary" to include bundled retail transmissions in its remedy, it must be kept in mind exactly what it was that FERC sought to remedy in the first place: a problem with the wholesale power market. FERC's findings, as Enron itself recognizes, concerned electric utilities' use of their market power to " 'deny their wholesale customers access to competitively priced electric generation,' " thereby " 'deny[ing] consumers the substantial benefits of lower electricity prices.' " Brief for Petitioner in No. 00-809, pp. 12-13 (quoting NPRM 33,052) (emphasis added). The title of Order No. 888 confirms FERC's focus: "Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services . . . ." Order No. 888, at 31,632 (emphasis added). Indeed, FERC has, from the outset, identified its goal as "facilitat[ing] competitive wholesale electric power markets." NPRM 33,049 (emphasis added).
To remedy the wholesale discrimination it found, FERC chose to regulate all wholesale transmissions. It also regulated unbundled retail transmissions, as was within its power to do. See Part III, supra. However, merely because FERC believed that those steps were appropriate to remedy discrimination in the wholesale electricity market does not, as Enron alleges, lead to the conclusion that the regulation
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