# 123 FERC ¶ 61,048: Composition of Proxy Groups for Determining and Oil Pipeline Return on Equity > Federal · Agency guidance · In force URL: https://www.frixlaw.com/law-library/statutes/FERC_PL07_2_000 ## Section - **Citation:** 123 FERC ¶ 61,048 - **Heading:** Composition of Proxy Groups for Determining and Oil Pipeline Return on Equity - **Jurisdiction:** Federal - **Kind:** Agency guidance - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** FERC Policy Statements / Composition of Proxy Groups for Determining and Oil Pipeline Return on Equity ## Text 123 FERC ¶ 61,048 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Composition of Proxy Groups for Determining Gas and Oil Pipeline Return on Equity Docket No. PL07-2-000 POLICY STATEMENT (Issued April 17, 2008) 1. On July 19, 2007, the Commission issued a proposed policy statement concerning the composition of the proxy groups used to determine gas and oil pipelines’ return on equity (ROE) under the Discounted Cash Flow (DCF) model.1 Historically, in determining the proxy group, the Commission required that pipeline operations constitute a high proportion of the business of any firm included in the proxy group. However, in recent years, there have been fewer gas pipeline corporations that meet that standard, in part because of the greater trend toward Master Limited Partnerships (MLPs) in the gas pipeline industry. Additionally, there are no oil corporations available for use in the oil pipeline proxy group. These trends have made the MLP issue one of particular concern to the Commission and are the reason that the Commission issued the Proposed Policy Statement.2 1 Composition of Proxy Groups for Determining Gas and Oil Pipeline Return on Equity, 120 FERC ¶ 61,068 (2007) (Proposed Policy Statement). 2 After an initial round of comments and reply comments, the Commission concluded that it required additional comment on the issue of the growth rates of MLPs. After notice to this effect and the receipt of a round of initial and reply comments, staff held a technical conference involving an eight member panel on January 23, 2008 that was transcribed for the record. Comments and reply comments were filed thereafter. comments and reply comments, the Commission concluded that it required additional comment on the issue of the growth rates of MLPs. After notice to this effect and the receipt of a round of initial and reply comments, staff held a technical conference involving an eight member panel on January 23, 2008 that was transcribed for the record. Comments and reply comments were filed thereafter. Docket No. PL07-2-000 - 2 - 2. After review of an extensive record developed in this proceeding, the Commission concludes: (1) MLPs should be included in the ROE proxy group for both oil and gas pipelines; (2) there should be no cap on the level of distributions included in the Commission’s current DCF methodology; (3) the Institutional Brokers Estimated System (IBES) forecasts should remain the basis for the short-term growth forecast used in the DCF calculation; (4) there should be an adjustment to the long-term growth rate used to calculate the equity cost of capital for an MLP; and (5) there should be no modification to the current respective two-thirds and one-third weightings of the short- and long-term growth factors. Moreover, the Commission will not explore other methods for determining a pipeline’s equity cost of capital at this time. The Commission also concludes that this Policy Statement should govern all gas and oil rate proceedings involving the establishment of ROE that are now pending before the Commission, whether at hearing or in a decisional phase at the Commission. I. Background A. The DCF Model 3. The Supreme Court has stated that “the return to the equity owner should be commensurate with the return on investments in other enterprises having corresponding risks overn all gas and oil rate proceedings involving the establishment of ROE that are now pending before the Commission, whether at hearing or in a decisional phase at the Commission. I. Background A. The DCF Model 3. The Supreme Court has stated that “the return to the equity owner should be commensurate with the return on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.”3 Since the 1980s, the Commission has used the DCF model to develop a range of returns earned on investments in companies with corresponding risks for purposes of determining the ROE to be awarded natural gas and oil pipelines. 4. The DCF model was originally developed as a method for investors to estimate the value of securities, including common stocks. It is based on the premise that “a stock’s price is equal to the present value of the infinite stream of expected dividends discounted at a market rate commensurate with the stock’s risk.”4 With simplifying assumptions, the DCF model results in the investor using the following formula to determine share price: P = D/(r-g) 3 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). Bluefield Water Works & Improvement Co. v. Public Service Comm’n, 262 U.S. 679 (1923). 4 CAPP v. FERC, 254 F.3d 289, 293 (2001) (CAPP). the stock’s risk.”4 With simplifying assumptions, the DCF model results in the investor using the following formula to determine share price: P = D/(r-g) 3 FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). Bluefield Water Works & Improvement Co. v. Public Service Comm’n, 262 U.S. 679 (1923). 4 CAPP v. FERC, 254 F.3d 289, 293 (2001) (CAPP). Docket No. PL07-2-000 - 3 - where P is the price of the stock at the relevant time, D is the current dividend, r is the discount rate or rate of return, and g is the expected constant growth in dividend income to be reflected in capital appreciation.5 5. Unlike investors, the Commission uses the DCF model to determine the ROE (the “r” component) to be included in the pipeline’s rates, rather than to estimate a stock’s value. Therefore, the Commission solves the DCF formula for the discount rate, which represents the rate of return that an investor requires in order to invest in a firm. Under the resulting DCF formula, ROE equals current dividend yield (dividends divided by share price) plus the projected future growth rate of dividends: r = D/P + g 6. Over the years, the Commission has standardized the inputs to the DCF formula as applied to interstate gas and oil pipelines. The Commission averages short-term and long-term growth estimates in determining the constant growth of dividends (referred to as the two-step procedure). Security analysts’ five-year forecasts for each company in the proxy group (discussed below), as published by IBES, are used for determining growth for the short term. The long-term growth is based on forecasts of long-term growth of the economy as a whole,6 as reflected in the Gross Domestic Product (GDP which are drawn from three different sources.7 The short-term forecast receives a two- thirds weighting and the long-term forecast receives a one-third weighting in calculating the growth rate in the DCF model.8 5 Id g-term growth is based on forecasts of long-term growth of the economy as a whole,6 as reflected in the Gross Domestic Product (GDP which are drawn from three different sources.7 The short-term forecast receives a two- thirds weighting and the long-term forecast receives a one-third weighting in calculating the growth rate in the DCF model.8 5 Id. National Fuel Gas Supply Corp., 51 FERC ¶ 61,122, at 61,337 n.68 (1990). Ozark Gas Transmission System, 68 FERC ¶ 61,032, at 61,104 n.16. (1994). 6 Northwest Pipeline Company, 79 FERC ¶ 61,309, at 62,383 (1997) (Opinion No. 396-B). Williston Basin Interstate Pipeline Company, 79 FERC ¶ 61,311, at 62,389 (1997) (Williston I), aff’d, Williston Basin Interstate Pipeline Co. v. FERC, 165 F.3d 54, 57 (D.C. Cir. 1999) (Williston v. FERC). 7 The three sources used by the Commission are Global Insight: Long-Term Macro Forecast – Baseline (U.S. Economy 30-Year Focus); Energy Information Agency, Annual Energy Outlook; and the Social Security Administration. 8 Transcontinental Gas Pipe Line Corp., 84 FERC ¶ 61,084, at 61,423-4 (Opinion No. 414-A), reh’g denied, 85 FERC ¶ 61,323, at 62,266-70 (1998) (Opinion No. 414-B), aff’d sub nom. North Carolina Utilities Commission v. FERC, 203 F.3d 53 (D.C. Cir. 2000) (unpublished opinion). Northwest Pipeline Co., 88 FERC ¶ 61,057, reh’g denied, 88 FERC ¶ 61,298 (1999), aff’d CAPP v. FERC, 254 F.3d 289 (D.C. Cir. 2001). ntal Gas Pipe Line Corp., 84 FERC ¶ 61,084, at 61,423-4 (Opinion No. 414-A), reh’g denied, 85 FERC ¶ 61,323, at 62,266-70 (1998) (Opinion No. 414-B), aff’d sub nom. North Carolina Utilities Commission v. FERC, 203 F.3d 53 (D.C. Cir. 2000) (unpublished opinion). Northwest Pipeline Co., 88 FERC ¶ 61,057, reh’g denied, 88 FERC ¶ 61,298 (1999), aff’d CAPP v. FERC, 254 F.3d 289 (D.C. Cir. 2001). Docket No. PL07-2-000 - 4 - 7. Most gas pipelines are wholly-owned subsidiaries and their common stocks are not publicly traded. This is also true for some jurisdictional oil pipelines. Therefore, the Commission must use a proxy group of publicly traded firms with corresponding risks to set a range of reasonable returns for both natural gas and oil pipelines. For both oil and gas pipelines, after defining the zone of reasonableness through development of the appropriate proxy group for the pipeline, the Commission assigns the pipeline a rate within that range or zone, to reflect specific risks of that pipeline as compared to the proxy group companies.9 The Commission has historically presumed that existing pipelines fall within a broad range of average risk. A pipeline or other litigating party has to show highly unusual circumstances that indicate anomalously high or low risk as compared to other pipelines to overcome the presumption.10 8. The Commission historically required that each company included in the proxy group satisfy the following three standards.11 First, the company’s stock must be publicly traded. Second, the company must be recognized as a natural gas or oil pipeline company and its stock must be recognized and tracked by an investment information service such as Value Line. Third, pipeline operations must constitute a high proportion of the company’s business ny included in the proxy group satisfy the following three standards.11 First, the company’s stock must be publicly traded. Second, the company must be recognized as a natural gas or oil pipeline company and its stock must be recognized and tracked by an investment information service such as Value Line. Third, pipeline operations must constitute a high proportion of the company’s business. Until 2003, the Commission’s policy was that the third standard could only be satisfied if a company’s pipeline business accounted for, on average, at least 50 percent of a company’s assets or operating income over the most recent three-year period.12 9. However, in recent years fewer corporations have satisfied the Commission’s standards for inclusion in the gas and oil pipeline proxy groups. Mergers and acquisitions have reduced the number of publicly traded corporations with natural gas pipeline operations. Most of the remaining corporations are engaged in such significant non-pipeline business that their pipeline business accounts are significantly less than 50 percent of their assets or operating income. At the same time, there has been a trend toward MLPs owning natural gas pipelines. This trend has been even more pronounced in the oil pipeline industry, with the result that there are now no purely oil pipeline corporations available for inclusion in the oil pipeline proxy group and virtually all traded 9 Williston v. FERC, 165 F.3d at 57 (citation omitted). 10 Transcontinental Gas Pipe Line Corp., 90 FERC ¶ 61,279, at 61,936 (2000). 11 Id. at 61,933. 12 Williston Basin Interstate Pipeline Company, 104 FERC ¶ 61,036, at P 35 n.46 no purely oil pipeline corporations available for inclusion in the oil pipeline proxy group and virtually all traded 9 Williston v. FERC, 165 F.3d at 57 (citation omitted). 10 Transcontinental Gas Pipe Line Corp., 90 FERC ¶ 61,279, at 61,936 (2000). 11 Id. at 61,933. 12 Williston Basin Interstate Pipeline Company, 104 FERC ¶ 61,036, at P 35 n.46 (2003) (Williston II). Docket No. PL07-2-000 - 5 - oil pipeline equity interests are owned by MLPs. Thus, for both oil and gas pipeline rate cases, the composition of the proxy group has become a significant issue, and the central question is whether, and how, to include MLPs in the proxy group. B. The MLP Business Model 10. MLPs consist of a general partner, who manages the partnership, and limited partners, who provide capital and receive cash distributions, but have no management role. The units of the limited partners are traded on public exchanges, just like corporate stock shares. In order to be treated as an MLP for Federal income tax purposes, an MLP must receive at least 90 percent of its income from certain qualifying sources, including natural resource activities. Natural resource activities include exploration, development, mining or production, processing, refining, transportation, storage and marketing of any mineral or natural resource, including gas and oil.13 11. MLPs generally distribute most available cash flow to the general and limited partners in the form of quarterly distributions. At their inception, MLPs establish agreements between the general and limited partners, which define cash flow available for distribution and how that cash flow is to be divided between the general and limited partners. Most MLP agreements define “available cash flow” as (1) net income (gross revenues minus operating expenses) plus (2) depreciation and amortization, minus butions. At their inception, MLPs establish agreements between the general and limited partners, which define cash flow available for distribution and how that cash flow is to be divided between the general and limited partners. Most MLP agreements define “available cash flow” as (1) net income (gross revenues minus operating expenses) plus (2) depreciation and amortization, minus (3) capital investments the partnership must make to maintain its current asset base and cash flow stream.14 Depreciation and amortization may be considered a part of “available 13 See Wachovia Securities, Master Limited Partnerships: A Primer, November 10, 2003, (Wachovia Primer 1) at 1, 3-4, reproduced in full in Docket No. OR96-2-012, Ex. SEP ARCO-22 and also in Kern River Gas Transmission Company, Docket No. RP04-274-000, Ex. No. BP-19 filed October 25, 2005; J.P. Morgan, Industry Analysis, Energy MLPS, dated March 28, 2002 (J.P. Morgan 2002 Energy MLPs) at 5-6, reproduced in full in Docket No. OR92-8-025, Ex. No. SWST-18, filed October 20, 2005; Wachovia Capital Markets, LLC, Equity Research Department, Master Limited Partnerships: Primer 2nd Edition, A Framework for Investment dated August 23, 2005 (Wachovia 2nd Primer) at 8-9, reproduced in full in Docket No. RP06- 72-000 at Ex. S-36, filed May 31, 2006); Coalition of Publicly Traded Partnerships, Publicly Traded Partnerships: What they are and how they work (undated) (Publicly Traded Partnerships) at 1-3, reproduced in full in Docket No. RP06-72-000 at Ex. S-35, filed May 31, 2006, and Docket No. OR96-2-012, Ex. No. BP-19, filed October 25, 2005; CAPP Reply Comments, Attachment A at 2-3; APGA Additional Comments dated December 21, 2007. 14 The definition of available cash may also net out short term working capital (continued…) d) (Publicly Traded Partnerships) at 1-3, reproduced in full in Docket No. RP06-72-000 at Ex. S-35, filed May 31, 2006, and Docket No. OR96-2-012, Ex. No. BP-19, filed October 25, 2005; CAPP Reply Comments, Attachment A at 2-3; APGA Additional Comments dated December 21, 2007. 14 The definition of available cash may also net out short term working capital (continued…) Docket No. PL07-2-000 - 6 - cash flow,” because depreciation is an accounting charge against current income, rather than an actual cash expense. Thus, depreciation does not reduce the MLP’s current cash on hand. The MLP agreement may provide for the general partner to receive increasingly higher percentages of the overall distribution if it raises the quarterly distribution. This gives the general partner incentives to increase the partnership’s business and cash flow.15 12. The general partner has discretion not to distribute the entire amount of available cash flow for the proper exercise of the business, to create reserves for capital expenditures, for the payment of debt, and for future distributions. However, pipeline MLPs have typically distributed 90 percent or more of available cash flow. As a result, the MLP’s cash distributions normally include not only the operating profit component of “available cash flow,” but also the depreciation component. This means that, in contrast to a corporation’s dividends, an MLP’s cash distributions generally exceed the MLP’s reported earnings. The pipeline MLP’s ability to distribute a high percentage of available cash flows reflects the stable cash flows underpinning its businesses.16 13. Because of their high cash distributions, MLPs have financed capital investments required to significantly expand operations or to make acquisitions through debt or by issuing additional units rather than through retained cash, although the general partner has the discretion to do so a high percentage of available cash flows reflects the stable cash flows underpinning its businesses.16 13. Because of their high cash distributions, MLPs have financed capital investments required to significantly expand operations or to make acquisitions through debt or by issuing additional units rather than through retained cash, although the general partner has the discretion to do so. These expansions financed through external debt are intended to provide a return equal to the cost of the capital plus some additional return for the existing unit holders, i.e., it is accretive. Thus, the return on any newly issued units is expected to be sufficiently high to avoid dilution of the current distributions to the existing unit holders.17 14. MLPs may also provide significant tax advantages to their unit holders. Some MLPs allocate depreciation, amortization, and tax credits to the limited partners and away from the general partner. In some cases, the limited partner may have no net taxable income reported on the income tax information document (the K-1) the limited partner borrowings, the repayment of capital expenditures, and other internal items. 15 Wachovia Primer 1 at 6-7; J.P. Morgan 2002 Energy MLPs at 5, 14; Wachovia 2nd Primer at 9, 15-19. 16 J.P. Morgan 2002 Energy MLPs at 11-13; Wachovia 2nd Primer at 24-25; Enbridge Initial Comments Attachment A, Wachovia Capital Markets, LLC, MLPs: Safe to Come Back Into the Water (Wachovia MLPs) dated August 20, 2007, at 2-4. 17 Id. ment of capital expenditures, and other internal items. 15 Wachovia Primer 1 at 6-7; J.P. Morgan 2002 Energy MLPs at 5, 14; Wachovia 2nd Primer at 9, 15-19. 16 J.P. Morgan 2002 Energy MLPs at 11-13; Wachovia 2nd Primer at 24-25; Enbridge Initial Comments Attachment A, Wachovia Capital Markets, LLC, MLPs: Safe to Come Back Into the Water (Wachovia MLPs) dated August 20, 2007, at 2-4. 17 Id. Docket No. PL07-2-000 - 7 - receives from the partnership each year, a pattern that may continue for years. In that case, the limited partner will not pay any taxes on the cash received from the partnership in the year of the distribution. To the extent a limited partner is allocated items of depreciation, credit, or losses that exceed the limited partner’s ownership percentage, income taxes will be due on the difference when the unit is sold. However, this may not occur for many years. Over time the real cost of the future taxes declines while the future return of any tax savings that is reinvested increases. This can significantly increase the return to the investor over the holding period of the limited partnership unit.18 15. Moreover, distributions in excess of earnings are not taxed as long as the limited partner has a tax basis. Rather, the limited partner’s tax basis is reduced and again any taxes are deferred until the unit is sold. By this tax deferral, the cash flow distributed in excess of earnings can be made available for reinvestment much earlier than would be the case of a corporate share.19 This reduces the limited partner’s risk because the limited partner’s cash basis in the unit is reduced, but the distribution would not normally reduce the market price of the unit nor, if the firm has access to external capital, would this necessarily reduce its long term growth potential. C. The Recent Cases on the Shrinking Proxy Group 1. Natural Gas Pipeline Cases 16 e share.19 This reduces the limited partner’s risk because the limited partner’s cash basis in the unit is reduced, but the distribution would not normally reduce the market price of the unit nor, if the firm has access to external capital, would this necessarily reduce its long term growth potential. C. The Recent Cases on the Shrinking Proxy Group 1. Natural Gas Pipeline Cases 16. The Commission first addressed the problem of the shrinking natural gas pipeline proxy group in Williston II, 104 FERC ¶ 61,036 at P 34-43. In that NGA section 4 rate case, the Commission relaxed the requirement that natural gas business account for at least 50 percent of the corporation’s assets or operating income. Instead, the Commission approved the pipeline’s proposal to use a proxy group based on the corporations listed in the Value Line Investment Survey’s list of diversified natural gas firms that own Commission-regulated natural gas pipelines, without regard to what portion of the company’s business comprises pipeline operations. The proxy group approved in that case included four corporations that satisfied the Commission’s historic standards20 and 18 See PSCNY Initial Comments at 12-13 and Attachment 1 thereto at 2; Wachovia Primer at 4-5; Publicly Traded Partnerships at 2-3; Wachovia 2nd Primer at 1, 5, 20-22; J.P. Morgan 2002 Energy MLPs at 18-19. 19 Id. 20 The Commission noted that two of those four companies were in the process of merging so that in the future there would be only three pipeline corporations that satisfied our historic proxy group standards. Williston II, 104 FERC ¶ 61,036 at P 35. achovia Primer at 4-5; Publicly Traded Partnerships at 2-3; Wachovia 2nd Primer at 1, 5, 20-22; J.P. Morgan 2002 Energy MLPs at 18-19. 19 Id. 20 The Commission noted that two of those four companies were in the process of merging so that in the future there would be only three pipeline corporations that satisfied our historic proxy group standards. Williston II, 104 FERC ¶ 61,036 at P 35. Docket No. PL07-2-000 - 8 - five corporations with less pipeline business and more local distribution business than the Commission had previously allowed. The Commission set Williston’s ROE at the median of this proxy group. 17. The Commission next addressed the proxy group issue in a 2004 order in Petal Gas Storage, L.L.C., 97 FERC ¶ 61,097 (2001), reh’g granted in part and denied in part, 106 FERC ¶ 61,325 (2004) (Petal). In that case, a jurisdictional storage company with market-based rates had applied for a certificate under NGA section 7 to construct pipeline facilities to transport gas from its existing storage facility to a new interconnection with Southern Natural Gas Co. The Commission found that Petal was not a new entrant in the jurisdictional gas transportation business, but was simply expanding its existing business and had not shown that it faced any unusual risks. Ordinarily in such circumstances the Commission would use the pipeline’s own currently approved ROE for its existing services in determining an initial incremental rate for the expansion. However, because Petal had market-based rates for its existing services, there was no such currently approved ROE to use. Therefore, the Commission calculated the initial rate for Petal’s expansion using the same median ROE which it had approved in Williston, which was the most recent litigated gas pipeline section 4 rate case. 18. When the Commission next addressed the proxy group issue, in High Island Offshore System, L.L.C. (HIOS),21 and Kern River Gas Transmission Company (Opinion No proved ROE to use. Therefore, the Commission calculated the initial rate for Petal’s expansion using the same median ROE which it had approved in Williston, which was the most recent litigated gas pipeline section 4 rate case. 18. When the Commission next addressed the proxy group issue, in High Island Offshore System, L.L.C. (HIOS),21 and Kern River Gas Transmission Company (Opinion No. 486),22 the Williston II proxy group had shrunk to six corporations. Moreover, the Commission found that two of those corporations should be excluded from the proxy group on the ground that their financial difficulties had lowered their ROEs to such a low level as to render them unrepresentative.23 This left only four corporations eligible for the proxy group under the standards adopted in Williston II, three of whom derived more revenue from the distribution business than the pipeline business. The two pipelines contended that, in these circumstances, the Commission should include natural gas pipeline MLPs in the gas pipeline proxy group. They asserted that MLPs have a much higher percentage of their business devoted to pipeline operations than most of the corporations eligible for the proxy group under Williston II, and therefore are more representative of the risks faced by pipelines. 21110 FERC ¶ 61,043, reh’g denied, 112 FERC ¶ 61,050 (2005). 22 117 FERC ¶ 61,077 (2006), reh’g pending. 23 HIOS, 110 FERC ¶ 61,043 at P 118. Opinion No. 486, 117 FERC ¶ 61,077 at P 140-141. ns than most of the corporations eligible for the proxy group under Williston II, and therefore are more representative of the risks faced by pipelines. 21110 FERC ¶ 61,043, reh’g denied, 112 FERC ¶ 61,050 (2005). 22 117 FERC ¶ 61,077 (2006), reh’g pending. 23 HIOS, 110 FERC ¶ 61,043 at P 118. Opinion No. 486, 117 FERC ¶ 61,077 at P 140-141. Docket No. PL07-2-000 - 9 - 19. In HIOS and Opinion No. 486, the Commission rejected the proposals to include MLPs in the proxy group, and approved proxy groups using the four corporations still available under the Williston II approach of basing the proxy group on the Value Line Investment Survey’s group of diversified natural gas corporations that own Commission- regulated pipelines. In HIOS, the Commission set the pipeline’s ROE at the median of the four-corporation proxy group. In Opinion No. 486, the Commission took the same general approach as in HIOS, but set the pipeline’s ROE 50 basis points above the median to account for the fact its pipeline operations have a higher risk than its distribution business.24 20. In rejecting the proposals to include MLPs in the proxy group in both cases, the Commission made clear that it was not making a generic finding that MLPs cannot be considered for inclusion in the proxy group if a proper evidentiary showing is made.25 However, the Commission pointed out that data concerning dividends paid by the proxy group members is a key component in any DCF analysis, and expressed concern that an MLP’s cash distributions to its unit holders may not be comparable to the corporate dividends the Commission uses in its DCF analysis. In Opinion No. 486, the Commission explained its concern as follows: Corporations pay dividends in order to distribute a share of their earnings to stockholders. As such, dividends do not include any return of invested capital to the stockholders. Rather, dividends represent solely a return on invested capital e comparable to the corporate dividends the Commission uses in its DCF analysis. In Opinion No. 486, the Commission explained its concern as follows: Corporations pay dividends in order to distribute a share of their earnings to stockholders. As such, dividends do not include any return of invested capital to the stockholders. Rather, dividends represent solely a return on invested capital. Put another way, dividends represent profit that the stockholder is making on its investment. Moreover, corporations typically reinvest some earnings to provide for future growth of earnings and thus dividends. Since the return on equity which the Commission awards in a rate case is intended to permit the pipeline’s investors to earn a profit on their investment and provides funds to finance future growth, the use of dividends in the DCF analysis is entirely consistent with the purpose for which the Commission uses that analysis. By contrast, as Kern River concedes, the cash distributions of the MLPs it seeks to add to the proxy group in this case include a return of invested capital through an allocation of the partnership’s net income. While the level of an MLP’s cash distributions may be a significant factor in the unit holder’s decision to invest in the MLP, the Commission uses the DCF analysis solely to determine the pipeline’s return on equity. The Commission provides for the return of invested capital through a separate depreciation allowance. For this reason, to the extent an MLP’s distributions include a significant return of invested capital, a DCF analysis based 24 Id. at P 171-176. 25 Id. at P 147. See also HIOS, 110 FERC ¶ 61,043 at P 125. ine the pipeline’s return on equity. The Commission provides for the return of invested capital through a separate depreciation allowance. For this reason, to the extent an MLP’s distributions include a significant return of invested capital, a DCF analysis based 24 Id. at P 171-176. 25 Id. at P 147. See also HIOS, 110 FERC ¶ 61,043 at P 125. Docket No. PL07-2-000 - 10 - on those distributions, without any adjustment, will tend to overstate the estimated return on equity, because the ‘dividend’ would be inflated by cash flow representing return of equity, thereby overstating the earnings the dividend stream purports to reflect.26 21. The Commission stated that it could nevertheless consider including MLPs in the proxy group in a future case, if the pipeline presented evidence addressing these concerns. The discussion in the order suggested that such evidence might include some method of adjusting the MLPs’ distributions to make them comparable to dividends, a showing that the higher “dividend” yield of the MLP was offset by a lower long-term growth projection, or some other explanation why distributions in excess of earnings do not distort the DCF results for the MLP in question.27 However, the Commission concluded that Kern River had not presented sufficient evidence to address these issues, and that the record in that case did not support including MLPs in the proxy group. 22. In addition, Opinion No. 486 pointed out that the traditional DCF model only incorporates growth resulting from the reinvestment of earnings, not growth arising from external sources of capital.28 Therefore, the Commission stated that if growth forecasted for an MLP comes from external capital, it is necessary either (1) to explain why the external sources of capital do not distort the DCF results for that MLP or (2) propose an adjustment to the DCF analysis to eliminate any distortion. 2. Oil Pipeline Cases 23 not growth arising from external sources of capital.28 Therefore, the Commission stated that if growth forecasted for an MLP comes from external capital, it is necessary either (1) to explain why the external sources of capital do not distort the DCF results for that MLP or (2) propose an adjustment to the DCF analysis to eliminate any distortion. 2. Oil Pipeline Cases 23. In some oil pipeline rate cases decided before HIOS and Opinion No. 486, the Commission included MLPs in the proxy group used to determine oil pipeline return on equity on the ground that there were no corporations available for use in the oil proxy group.29 In those cases, no party raised any issue concerning the comparability of an MLP’s cash distribution to a corporation’s dividend. However, that issue did arise in the first oil pipeline case decided after HIOS and Opinion No. 486, which involved SFPP’s Sepulveda Line.30 The Commission approved inclusion of MLPs in the proxy group in 26 Opinion No. 486, 117 FERC ¶ 61,077 at P 149-150. 27 Proposed Policy Statement at P 10-11. 28 Id. at P 152. 29 SFPP, L .P., 86 FERC ¶ 61,022, at 61,099 (1999). 30 SFPP, L.P., 117 FERC ¶ 61,285 (2006) (SFPP Sepulveda Order), rehearing pending. Docket No. PL07-2-000 - 11 - that case on the grounds that the included MLPs in question had not made distributions in excess of earnings. The order found these facts sufficient to address the concerns expressed in HIOS and Opinion No. 486. D. Court Remand of Petal and HIOS 24. Both Petal and HIOS appealed the Commission’s orders in their cases to the United States Court of Appeals for the District of Columbia Circuit t case on the grounds that the included MLPs in question had not made distributions in excess of earnings. The order found these facts sufficient to address the concerns expressed in HIOS and Opinion No. 486. D. Court Remand of Petal and HIOS 24. Both Petal and HIOS appealed the Commission’s orders in their cases to the United States Court of Appeals for the District of Columbia Circuit. The court considered the appeals together, and it vacated and remanded the proxy group rulings in both cases.31 The court emphasized that the Commission’s “proxy group arrangements must be risk-appropriate.”32 The court explained that this means that firms included in the proxy group should face similar risks to the pipeline whose ROE is being determined, and any differences in risk should be recognized in determining where to place the pipeline in the proxy group range of reasonable returns. 25. The court recognized that changes in the gas pipeline industry compel a change in the Commission’s traditional approach to determining the proxy group, and the court stated that “controversy about how it should change has been bubbling up in a number of recent cases,” citing both Williston II and Opinion No. 486. But the court found that the cases on appeal “seem[] to represent an arrival point of sorts for the Commission,” pointing out that Opinion No. 486 had reversed an administrative law judge for deviating from the HIOS proxy group.33 26. The court held that the Commission had not shown that the proxy group arrangements it approved in Petal and HIOS were risk-appropriate. The court pointed out that the Commission had rejected the inclusion of MLPs in the proxy group on the ground that MLP distributions, unlike dividends, might provide returns of equity as well as returns on equity. While stating that this proposition is not “self-evident,” the court accepted it for the sake of argument y group arrangements it approved in Petal and HIOS were risk-appropriate. The court pointed out that the Commission had rejected the inclusion of MLPs in the proxy group on the ground that MLP distributions, unlike dividends, might provide returns of equity as well as returns on equity. While stating that this proposition is not “self-evident,” the court accepted it for the sake of argument. Nonetheless, the court stated that nothing in the Commission’s decision explained why the companies selected by the Commission for inclusion in the proxy group are risk-comparable to HIOS. The court stated that when the 31 Petal Gas Storage, L.L.C. v. FERC, 496 F.3d 695 (D.C. Cir. 2007) (Petal v. FERC). 32 Petal v. FERC, 496 F.3d at 697, quoting Canadian Association of Petroleum Producers v. FERC, 254 F.3d 289 (D.C. Cir. 2001). 33 Opinion No. 486 reversed the ALJ’s inclusion of the two financially troubled pipelines in the proxy group Docket No. PL07-2-000 - 12 - goal is a proxy group of comparable companies, it is not clear that natural gas companies with highly different risk profiles should be regarded as comparable. 27. The court further stated that in placing Petal and HIOS in the middle of the proxy group in terms of return on equity, the Commission expressly relied on the assumption that pipelines generally fall into a broad range of average risk as compared to other pipelines. However, the court stated, this assumption is decisive only given a proxy group composed of other pipelines. Thus, the court reasoned that if gas distribution companies generally face lower risk than gas pipelines,34 a risk-appropriate placement would be at the high end of the group. The court stated that the Commission erred by failing to explain how its proxy group arrangements were based on the principle of relative risk. 28. Therefore, the court vacated the Commission’s orders with respect to the proxy group issue ed that if gas distribution companies generally face lower risk than gas pipelines,34 a risk-appropriate placement would be at the high end of the group. The court stated that the Commission erred by failing to explain how its proxy group arrangements were based on the principle of relative risk. 28. Therefore, the court vacated the Commission’s orders with respect to the proxy group issue. The court stated that on remand, it did not require any particular proxy group arrangement, but stated that the overall arrangement must make sense in terms of the relative risk and in terms of the statutory command to set just and reasonable rates that are commensurate with returns on investments in other enterprises having corresponding risks. II. The Proposed Policy Statement 29. A month before the court’s decision in Petal v. FERC, the Commission reached a similar conclusion that its proxy group arrangements for gas and oil pipelines must be reexamined. Accordingly, on July 19, 2007, the Commission issued a Proposed Policy Statement, in which it proposed to modify its policy to allow MLPs to be included in the proxy group. The Proposed Policy Statement found that: Cost of service ratemaking requires that firms in the proxy group be of comparable risk to the firm whose equity cost of capital is being determined in a particular rate proceeding. If the proxy group is less than clearly representative, this may require the Commission to adjust for the difference in risk by adjusting the equity cost-of-capital, a difficult undertaking requiring detailed support from the contending parties and detailed case-by-case analysis by the Commission. Expanding the proxy group to include MLPs whose business is more narrowly 34 The court noted that this seems likely. ire the Commission to adjust for the difference in risk by adjusting the equity cost-of-capital, a difficult undertaking requiring detailed support from the contending parties and detailed case-by-case analysis by the Commission. Expanding the proxy group to include MLPs whose business is more narrowly 34 The court noted that this seems likely. Docket No. PL07-2-000 - 13 - focused on pipeline activities would help provide a more representative proxy group.35 30. However, the Commission proposed to cap the cash distribution used to determine an MLP’s return under the DCF method at the MLP’s reported earnings. The Commission found that this was necessary to exclude that portion of an MLP’s distributions constituting return of equity. The Commission provides for the return of equity through a depreciation allowance. Therefore, the Commission stated that the cash flows used in the DCF analysis should be limited to those which reflect a return on equity. The concern was the pipeline could double recover its depreciation expense. The Commission also proposed to require a showing that the MLP has had stable earnings over a multi-year period, so as to justify a finding that it will be able to maintain the current level of cash distributions in future years. The Proposed Policy Statement found that these requirements should render the MLP’s cash distribution comparable to a corporation’s dividend for purposes of the DCF analysis. 31. Under the Proposed Policy Statement, the Commission would leave to individual cases the determination of which specific MLPs and corporations should be included in the proxy group. The Commission proposed to apply its final policy statement to all gas and oil cases that have not completed the hearing phase as of the date the Commission issues its final policy statement DCF analysis. 31. Under the Proposed Policy Statement, the Commission would leave to individual cases the determination of which specific MLPs and corporations should be included in the proxy group. The Commission proposed to apply its final policy statement to all gas and oil cases that have not completed the hearing phase as of the date the Commission issues its final policy statement. The Commission stated that it would consider on a case- by-case basis whether to apply the final policy statement in cases that have completed the hearing phase. III. The Record in the Policy Statement Proceeding A. Pre-Technical Conference Comments 32. Twenty-two initial comments and thirteen reply comments were filed in response to the Proposed Policy Statement36 and fall into two categories: (1) those of gas and oil pipelines and the related trade associations (Pipeline Interests),37 and (2) those of gas and 35 Proposed Policy Statement, 120 FERC ¶ 61,068 at P 17. 36 Comments related to the technical conference are discussed infra and are characterized as conference comments or conference reply comments. 37 The Pipeline Interests include: the Association of Oil Pipe Lines (AOPL); El Paso Corporation (El Paso); Enbridge Energy Partners, L.P. (Enbridge); the Interstate Natural Gas Association of America (INGAA); MidAmerican Energy Pipeline Group (MidAmerican); the National Association of Publicly Traded Partnerships (NAPTP); (continued…) nts or conference reply comments. 37 The Pipeline Interests include: the Association of Oil Pipe Lines (AOPL); El Paso Corporation (El Paso); Enbridge Energy Partners, L.P. (Enbridge); the Interstate Natural Gas Association of America (INGAA); MidAmerican Energy Pipeline Group (MidAmerican); the National Association of Publicly Traded Partnerships (NAPTP); (continued…) Docket No. PL07-2-000 - 14 - oil producers and shippers, public and municipal utilities, state public service commissions, and related trade associations (Customer Interests).38 Two comments were also submitted by individuals in their business or personal capacity.39 33. The comments focus on three issues: (1) whether MLPs should be included in the gas pipeline proxy group at all; (2) whether the proposed cap on the MLP cash distributions used in the DCF analysis is necessary or adequate; and (3) whether the short- and long-term growth component of the DCF model should be modified given the financial practices of MLPs. Secondary points include the potential distorting effects of: MLP tax treatment, the large payouts by MLPs, the general partner’s incentive distribution rights (IDRs), and the relative returns to the limited and general partners. 34. All parties recognize that MLPs are the only available entities for inclusion in the oil pipeline proxy group. The Pipeline Interests also all assert that the Commission correctly proposed to include MLPs in the gas pipeline proxy group. In contrast, most of the Customer Interests assert that there are enough corporations available for inclusion in the gas pipeline proxy group and that there is no need to include MLPs. 35. Both the Pipeline and Customer Interests question the proposed earnings cap on MLP distributions, with the Pipeline Interests asserting the cap is unnecessary and the Customer Interests asserting the cap should be lower of the Customer Interests assert that there are enough corporations available for inclusion in the gas pipeline proxy group and that there is no need to include MLPs. 35. Both the Pipeline and Customer Interests question the proposed earnings cap on MLP distributions, with the Pipeline Interests asserting the cap is unnecessary and the Customer Interests asserting the cap should be lower. The Pipeline Interests assert that an MLP’s share price reflects investors’ projection of all cash flows it will receive from the MLP, including distributions in excess of earnings. Therefore, any cap on the Panhandle Energy Pipelines (Panhandle); Spectra Energy Transmission, LLC (Spectra); TransCanada Corporation (TransCanada); and Williston Basin Interstate Pipeline Company (Williston). 38 The Customer Interests include: the American Gas Association (AGA); the America Public Gas Association (APGA); the Air Transport Association of America; the Canadian Association of Petroleum Producers (CAPP); Indicated Shippers (consisting of Area Energy, LLC, Anadarko E&P Company LP, Anadarko Petroleum Corporation, Chevron USA Inc., Coral Energy Resources LP, Occidental Energy Marketing Inc., and Shell Rocky Mountain Production, LLC); the Natural Gas Supply Association (NGSA); the Process Gas Consumers Group; the Public Service Commission of New York (PSCNY); Tesoro Refining and Marketing Company (Tesoro); the Northern Municipal Distributors Group (NMDG) and the Midwest Region Gas Task Force Association filing jointly; and the Society for the Preservation of Oil Shippers (Society). 39 The individual comments include Crowley Energy Consulting, supporting the Customer Interests, and Barry Gleicher, supporting the Pipeline Interests. ork (PSCNY); Tesoro Refining and Marketing Company (Tesoro); the Northern Municipal Distributors Group (NMDG) and the Midwest Region Gas Task Force Association filing jointly; and the Society for the Preservation of Oil Shippers (Society). 39 The individual comments include Crowley Energy Consulting, supporting the Customer Interests, and Barry Gleicher, supporting the Pipeline Interests. Docket No. PL07-2-000 - 15 - distributions while still using a dividend yield reflecting the full share price would lead to distorted results.40 The Customer Interests agree that the adjustment to MLP distributions is necessary to remove a double count attributed to depreciation, but they also uniformly assert that the proposed adjustment is inadequate to compensate for a wide range of financial factors that distinguish MLPs from Schedule C corporations. 36. On the growth rate issue, the Pipeline Interests in their initial comments generally agree that, if MLPs have greater distributions than a corporation, then the MLP may have less growth potential than a corporation. However, they argue that this fact does not require any additional adjustment, since any lower growth potential would be reflected in a reduced IBES growth forecast. The Pipeline Interests also state that distributions in excess of earnings do not prevent reinvestment or organic growth. They assert that pipeline MLPs have ready access to capital markets given their stable cash flows and the projected expansion of the pipeline system, which can be the basis for organic growth.41 37. In contrast, the Customer Interests assert that MLPs have significantly lower growth potential than corporations due to their distributions in excess of earnings, particularly over the long term.42 They cite studies by established investment firms suggesting that the long term growth potential of MLPs is less than the long term growth factor now included in the DCF model growth.41 37. In contrast, the Customer Interests assert that MLPs have significantly lower growth potential than corporations due to their distributions in excess of earnings, particularly over the long term.42 They cite studies by established investment firms suggesting that the long term growth potential of MLPs is less than the long term growth factor now included in the DCF model. Moreover, they argue that given the high level of MLP distributions and declining opportunities for acquisitions with high returns, MLP growth must now come from investment of external funds in projects that will enhance organic growth of existing business lines.43 38. Some of the Customer Interests further argue that there are inadequate investment opportunities to support capital investment, and in the relatively near future the present level of MLP distributions will be maintained only by borrowing or issuing additional 40 AOPL initial comments at 8, 10; INGAA initial comments at 13-14; Spectra initial comments at 4; NAPTP initial comments at 4. 41 AOPL comments at 21-24 and attachments; Enbridge Energy reply comments at 5; INGAA comments at 22-24; TransCanada reply comments at 8-10. 42 APGA reply comments at 11-15; CAPP initial comments at 1; CAPP reply comments at 6-7, and attachment at 3-4; NYPSC initial comments at 19-21, 23, including attachments of financial materials from major investment houses; NYPSC reply comments at 4-7; Tesoro reply comments at 25-27. 43 Id. ts; Enbridge Energy reply comments at 5; INGAA comments at 22-24; TransCanada reply comments at 8-10. 42 APGA reply comments at 11-15; CAPP initial comments at 1; CAPP reply comments at 6-7, and attachment at 3-4; NYPSC initial comments at 19-21, 23, including attachments of financial materials from major investment houses; NYPSC reply comments at 4-7; Tesoro reply comments at 25-27. 43 Id. Docket No. PL07-2-000 - 16 - limited partners’ units.44 Therefore, they argue, sustainability of MLP growth is a major issue that must be examined in rate proceedings as this implies a lower equity cost-of- capital component in the pipeline’s rate structure.45 The Customer Interests also assert that the Commission’s traditional DCF model has never permitted the inclusion of externally generated funds in the growth component of the model. Thus, to the extent the IBES projections include such external funds, they assert that this compromises the forecasts. 39. Finally, NGSA urge the Commission to initiate a new proceeding to consider alternatives to the DCF methodology for determining gas pipeline ROEs. AGA requests a technical conference to discuss the issues further, which as noted, the Commission granted with regard to the growth factors.46 Two commenters assert that any change in policy should apply prospectively and should not apply to proceedings for which the hearing record is completed, e.g., the Kern River proceeding.47 B. Technical Conference and Post-Technical Conference Comments 40. After review of the initial comments summarized above, the Commission issued a supplemental notice on November 15, 2007, requesting additional comments solely on the issue of MLP growth rates, and establishing a technical conference to discuss that issue. The technical conference was held on January 23, 2008 ng.47 B. Technical Conference and Post-Technical Conference Comments 40. After review of the initial comments summarized above, the Commission issued a supplemental notice on November 15, 2007, requesting additional comments solely on the issue of MLP growth rates, and establishing a technical conference to discuss that issue. The technical conference was held on January 23, 2008. The Commission concluded that supplementing the record before the Commission could resolve the issue of how to project MLP growth rates assuming that the Commission ultimately decides to permit the use of MLPs in the proxy group. The Commission focused the technical conference on the appropriate method for determining MLP growth and, in particular, that which should be used if the Commission did not cap the distributions used to determine the dividend yield. Thus, whether to include MLPs in the proxy group or to limit the distributions to earnings were not issues before the technical conference. The technical conference was transcribed for use in the record herein. 41. Thirteen parties submitted comments in response to the November 15 notice, on three main topics: (1) the short-term growth component; (2) the long-term growth 44 Crowley Energy Consultant initial comments; Society at 5-6. 45 Id. 46 AGA initial comments at 8. 47 Id. at 8, 25; NGSA initial comments at 3, 11. or use in the record herein. 41. Thirteen parties submitted comments in response to the November 15 notice, on three main topics: (1) the short-term growth component; (2) the long-term growth 44 Crowley Energy Consultant initial comments; Society at 5-6. 45 Id. 46 AGA initial comments at 8. 47 Id. at 8, 25; NGSA initial comments at 3, 11. Docket No. PL07-2-000 - 17 - component; and (3) the weighting of these two components.48 Of these, eight parties requested to participate on the panels and the Commission accepted all of the individuals proffered by these parties.49 To summarize, two of the panelists represented parties that continued to assert that MLPs should not be included in the ROE proxy group.50 More consistent with the premise of the conference, three panelists stated that there needed to be an adjustment to the long term GDP component the Commission currently uses in its DCF model.51 Two stated that MLPs would grow at a slower rate than corporations in the long-term phase of growth. However, six other panelists asserted that an MLP as a whole could grow as fast as a corporation in the terminal phase, but most conceded that the use of an incentive distribution rights (IDRs)52 would cause the limited partnership interests to grow at slower rate than the MLP as a whole.53 In addition, three panelists questioned the reliability of the IBES forecasts for use in developing the short- term 48 APGA, AOPL, CAPP, Enbridge, INGAA, MidAmerica, NAPTP, NGSA, PSNYC, State of Alaska, Tesoro, TransCanada, and Williston. 49 Professor J. Peter Williamson on behalf of the Association of Oil Pipelines, Mr. J. Bertram Solomon on behalf of the American Public Gas Association, Mr. Michael J. Vilbert on behalf of the Interstate Natural Gas Association of America, Mr. Park Shaper and Mr. Yves Siegel on behalf of the National Association of Publicly Traded Partnerships, Mr laska, Tesoro, TransCanada, and Williston. 49 Professor J. Peter Williamson on behalf of the Association of Oil Pipelines, Mr. J. Bertram Solomon on behalf of the American Public Gas Association, Mr. Michael J. Vilbert on behalf of the Interstate Natural Gas Association of America, Mr. Park Shaper and Mr. Yves Siegel on behalf of the National Association of Publicly Traded Partnerships, Mr. Patrick Barry on behalf of the Public Service Commission of New York, Mr. Thomas Horst on behalf of the State of Alaska, and Mr. Paul Moul on behalf of TransCanada Corporation. 50 PSCNY and APGA. CAPP, NGSA, and Tesoro supported this position but did not participate on the panel. 51 PSCNY, APGA, and State of Alaska as well as the NGSA. 52 As discussed further below, an incentive distribution provision in an MLP partnership agreement provides for an increasing large percentage of distributions to the general partner as the cash distributions per limited partnership share increase over time. The maximum incentive distribution to the general partner varies with the partnership agreement, but may be as high as 47 percent. . 53 Two spoke for NAPTP and one each for AOPL, INGAA, the State of Alaska, and TransCanada. Williston, Enbridge, and MidAmerican also asserted that there is no reason to conclude the growth would not at least equal GDP. They did not speak to the issue of the limited partner growth rate that might be lower as a result of the incentive distributions to the general partner. as 47 percent. . 53 Two spoke for NAPTP and one each for AOPL, INGAA, the State of Alaska, and TransCanada. Williston, Enbridge, and MidAmerican also asserted that there is no reason to conclude the growth would not at least equal GDP. They did not speak to the issue of the limited partner growth rate that might be lower as a result of the incentive distributions to the general partner. Docket No. PL07-2-000 - 18 - projection54 and one stated that the longer term growth component of the formula should be weighted at no greater than 10 percent.55 IV. Discussion 42. Based on its review of all the comments and the record of the technical conference, the Commission is adopting the following policy concerning the composition of the natural gas pipeline and oil pipeline proxy groups: (1) consistent with the Proposed Policy Statement, the Commission will permit MLPs to be included in the proxy group for both gas and oil pipelines; (2) the proposed earnings cap on the MLPs’ distributions will not be adopted; and (3) the Commission will use the same DCF analysis for MLPs as for corporations, except that the long-term growth projection for MLPs shall be 50 percent of projected growth in GDP. A. Whether to Include MLPs in the Gas and Oil Pipeline Proxy Groups 1. Comments 43. The first issue is whether to include MLPs in the proxy group used to determine a pipeline’s return on equity. No commenter contests the Commission’s statement that, in oil pipeline proceedings, MLPs are the only firms available for inclusion in the proxy group.56 In addition, the Pipeline Interests all assert that the Commission correctly proposed to include MLPs in the gas pipeline proxy group. They agree with the Commission that this will result in a more representative proxy group that reflects long- term trends within the gas pipeline industry and assert that the resulting returns will encourage further investment in both the gas and oil pipeline industries on, the Pipeline Interests all assert that the Commission correctly proposed to include MLPs in the gas pipeline proxy group. They agree with the Commission that this will result in a more representative proxy group that reflects long- term trends within the gas pipeline industry and assert that the resulting returns will encourage further investment in both the gas and oil pipeline industries. Including MLPs in the proxy group would reduce the need for difficult adjustments to projected equity returns to accommodate differences in risk among the different types of firms that might reasonably be included in the proxy group. 44. In contrast, most of the commenters representing the Customer Interests assert that there are enough corporations available for inclusion in the gas pipeline proxy group that there is no need to include MLPs. They further argue that the differences between the 54 APGA, PSCNY, and State of Alaska. 55 TransCanada, Additional Comments dated December 21 at 12. 56 AOPL initial comments at 5. Tesoro initial comments at 2. See also Society initial comments addressing the possible inclusion oil pipeline MLPs in the proxy group. Docket No. PL07-2-000 - 19 - MLP and corporate business model render any use of MLPs inconsistent with the DCF model. APGA expressly states that the Commission should abandon the Proposed Policy Statement.57 45. The NMDG asserts that the Commission has not established that there is any reason to issue the Policy Statement or to relieve a pipeline applicant of the burden of establishing why any MLPs should be included in the proxy group. In this vein, Indicated Shippers assert that the Commission should consider alternative procedures for defining the proxy group, and that the improvement in El Paso Natural Corporation’s and the William Company’s financial situation and the creation of the Spectra Group suggest that the corporate gas proxy group is becoming more representative y any MLPs should be included in the proxy group. In this vein, Indicated Shippers assert that the Commission should consider alternative procedures for defining the proxy group, and that the improvement in El Paso Natural Corporation’s and the William Company’s financial situation and the creation of the Spectra Group suggest that the corporate gas proxy group is becoming more representative. 46. Finally, NGSA urges the Commission to initiate a new proceeding to consider alternatives to the DCF methodology for determining gas pipeline ROEs. NGSA generally supports including MLPs in the proxy group, subject to adjustments, as a means of continuing to use the DCF method on a temporary basis. But it argues that a better long-term solution to determining gas pipeline ROEs would be to stop using the DCF method, and instead adopt a risk premium approach to determining ROE. It asserts that the risk premium approach is used in Canada and does not require adjustments to account for variations in corporate structure.58 INGAA states in its reply comments that the DCF methodology is not necessarily the only financial model that may be used, and asks the Commission to clarify that parties may propose other approaches in individual rate cases.59 2. Discussion 47. As the Commission pointed out in the proposed policy statement, the Supreme Court has held that “the return to the equity owner should be commensurate with the return on investment in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.”60 In order to attract capital, “a utility must offer a risk-adjusted expected rate of return sufficient to attract 57 APGA initial comments at 14. 58 NGSA initial comments at 13-15. 59 INGAA reply comments at 18. 60 FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1044). of the enterprise, so as to maintain its credit and to attract capital.”60 In order to attract capital, “a utility must offer a risk-adjusted expected rate of return sufficient to attract 57 APGA initial comments at 14. 58 NGSA initial comments at 13-15. 59 INGAA reply comments at 18. 60 FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1044). Docket No. PL07-2-000 - 20 - investors.”61 In other words, the utility must compete in the equity markets to obtain capital. 48. The Commission performs a DCF analysis of publicly-traded proxy firms to determine the return on equity that markets require a pipeline to give its investors in order for them to invest their capital in the pipeline. As the court explained in Petal Gas Storage, L.L.C. v. FERC, the purpose of the proxy group is to “provide market- determined stock and dividend figures from public companies comparable to a target company for which those figures are unavailable. Market-determined stock figures reflect a company’s risk level and when combined with dividend values, permit calculation of the ‘risk-adjusted expected rate of return sufficient to attract investors.’”62 It is thus crucial that the firms in the proxy group be comparable to the regulated firm whose rate is being determined. In other words, as the court emphasized in Petal, the proxy group must be “risk-appropriate.”63 49. The Commission continues to believe that including MLPs in the gas and oil proxy groups will, as required by Petal, make those proxy groups more representative of the business risks of the regulated firm whose rates are at issue. While there has been some modest expansion of the number of publicly-traded diversified natural gas companies that could be included in the proxy group, this does not change one basic fact. This is that more and more gas pipeline assets are being transferred to publicly-traded MLPs, whose business is narrowly focused on pipeline activities isks of the regulated firm whose rates are at issue. While there has been some modest expansion of the number of publicly-traded diversified natural gas companies that could be included in the proxy group, this does not change one basic fact. This is that more and more gas pipeline assets are being transferred to publicly-traded MLPs, whose business is narrowly focused on pipeline activities. As a result, these MLPs are likely to be more representative of predominantly pipeline firms than the diversified gas corporations still available for inclusion in a proxy group. As such, including MLPs in the gas pipeline proxy group should render the proxy group more “risk-appropriate,” consistent with Petal. Moreover, MLPs are the only publicly traded ownership form for oil pipelines and are the most representative group for determining the equity cost of capital for oil pipelines. 50. As the court also emphasized in Petal, when a proxy group is less than clearly representative, there may be a need for the Commission to adjust for the difference in risk by adjusting the equity cost-of-capital, a difficult undertaking requiring detailed support from the contending parties and detailed case-by-case analysis by the Commission. 61 CAPP, 254 F.3d at 293. 62 Petal, 496 F.3d at 697, quoting Canadian Association of Petroleum Producers v. FERC, 254 F.3d 289 (D.C. Cir. 2001). 63 Id. 6. ifference in risk by adjusting the equity cost-of-capital, a difficult undertaking requiring detailed support from the contending parties and detailed case-by-case analysis by the Commission. 61 CAPP, 254 F.3d at 293. 62 Petal, 496 F.3d at 697, quoting Canadian Association of Petroleum Producers v. FERC, 254 F.3d 289 (D.C. Cir. 2001). 63 Id. 6. Docket No. PL07-2-000 - 21 - Expanding a proxy group to include MLPs whose business is more narrowly focused on pipeline activities should help minimize the need to make adjustments, because the proxy group should be more representative of the regulated firms whose rates are at issue. 51. While this Policy Statement modifies Commission policy to permit MLPs to be included in the proxy group, the Commission is making no findings at this time as to which particular corporations and/or MLPs should be included in the gas or oil proxy groups. The Commission leaves that determination to each individual rate case. In order to assist the Commission in determining the most representative possible proxy group in those cases, the parties and other participants should provide as much information as possible regarding the business activities of each firm they propose to include in the proxy group, including their recent annual SEC filings and investor service analyses of the firms. This information should help the Commission determine whether the interstate natural gas or oil pipeline business is a primary focus of the firm and whether investors view an investment in the firm as essentially an investment in that business. While the Commission is not precluding use of diversified corporations or MLPs in the proxy group, the probable difference in the risk of the natural gas pipeline business and the risk profile of a diversified gas corporation with substantial local distribution activities has been highlighted by the parties and specifically recognized by the court in Petal.64 52 stment in that business. While the Commission is not precluding use of diversified corporations or MLPs in the proxy group, the probable difference in the risk of the natural gas pipeline business and the risk profile of a diversified gas corporation with substantial local distribution activities has been highlighted by the parties and specifically recognized by the court in Petal.64 52. As discussed further below, the Commission recognizes that there are significant differences in the cash flows to investors and growth rates of corporations and MLPs. However, as discussed below, the Commission believes that those issues may be accounted for in a correctly performed DCF analysis, and therefore these differences do not preclude inclusion of MLPs in the proxy group. 53. Finally, the Commission has concluded that it will not explore other methods of determining the equity cost of capital at this time. The DCF model is a well established method of determining the equity cost of capital,65 and other methods such as the risk premium model have not been used by the Commission for almost two decades. In the Commission’s judgment, the uncertainty that would be created by reopening its procedures to include other approaches outweighs any limitations in its current pragmatic 64 Id. at 6-7. 65 See Illinois Bell Telephone Co. v. FCC, 988 F.2d 1254, 1259 n. 6 (D.C. Cir. 1993), stating, “The DCF method ‘has become the most popular technique of estimating the cost of equity, and it is generally accepted by most commissions. Virtually all cost of capital witnesses use this method, and most of them consider it their primary technique.’” quoting J. Bonbright et al., Principles of Public Utility Regulation 318 (2d ed. 1988). C, 988 F.2d 1254, 1259 n. 6 (D.C. Cir. 1993), stating, “The DCF method ‘has become the most popular technique of estimating the cost of equity, and it is generally accepted by most commissions. Virtually all cost of capital witnesses use this method, and most of them consider it their primary technique.’” quoting J. Bonbright et al., Principles of Public Utility Regulation 318 (2d ed. 1988). Docket No. PL07-2-000 - 22 - approach to the financial characteristics of MLPs. Therefore the alternatives suggested by certain of the parties will not be pursued further here. Nothing submitted at the January 23rd technical conference warrants different conclusions. B. The Proposed Adjustment to MLP Cash Distributions 1. Comments 54. Both the Pipeline and Customer Interests attack the proposed earnings cap on MLP distributions, with the Pipeline Interests asserting the cap is unnecessary and the Customer Interests asserting the cap should be lower. The Pipeline Interests assert that there is no need to adjust the distributions included in the DCF model. They argue that investors include all cash flows that are generated by an MLP in applying a DCF model and do not distinguish between a return of investment and a return on investment66 since depreciation is an accounting concept that is used to calculate an MLP’s earnings that is not relevant to determining the cash flows included in a DCF analysis.67 The Pipeline Interests further assert that an unadjusted DCF calculation does not result in the double recovery of the depreciation component of an MLP’s cost-of-service.68 55. Moreover, the Pipeline Interests assert that, because all parts of the DCF model are linked, if the distribution component is reduced, this will necessarily affect the growth component of the model CF analysis.67 The Pipeline Interests further assert that an unadjusted DCF calculation does not result in the double recovery of the depreciation component of an MLP’s cost-of-service.68 55. Moreover, the Pipeline Interests assert that, because all parts of the DCF model are linked, if the distribution component is reduced, this will necessarily affect the growth component of the model. They assert that any adjustment limiting the distributions used to earnings will result in below market returns to investors and thus any such adjustment is arbitrary.69 As an alternative, they suggest that if an MLP’s distributions are unrepresentative, it is wiser to exclude that MLP from the sample as an outlier.70 They further assert there have been corporations in the proxy group that have distributed 66 AOPL initial comments at 16, 18; Spectra Energy initial comments at 14; NAPTP initial comments at 3. 67 INGAA initial comments at 5-6, 15-18; NAPTP initial comments at 4-5; MidAmerican initial comments at 5; Panhandle initial comments at 3 and attachment; Williston initial comments at 11. 68 INGAA initial comments at 15-17 and 20-21. 69 AOPL initial comments at 8, 10; INGAA initial comments at 13-14; Spectra initial comments at 4; PAPTP initial comments at 4. 70 INGAA initial comments at 13; Spectra Energy initial comments at 5, 19-20. Docket No. PL07-2-000 - 23 - dividends in excess of earnings for years and the Commission has never required an adjustment.71 They claim that in any event there are practical problems with an earnings cap because earnings are reported quarterly (unlike distributions which are reported monthly) and such reports are unedited and may require seasonal adjustments.72 56 nts at 5, 19-20. Docket No. PL07-2-000 - 23 - dividends in excess of earnings for years and the Commission has never required an adjustment.71 They claim that in any event there are practical problems with an earnings cap because earnings are reported quarterly (unlike distributions which are reported monthly) and such reports are unedited and may require seasonal adjustments.72 56. The Customer Interests support the Commission’s initial conclusion that an adjustment to MLP distributions is necessary to remove a double count attributed to depreciation, but they also uniformly assert that the proposed adjustment is inadequate to compensate for a wide range of financial factors that distinguish MLPs from Schedule C corporations. Thus, they assert that further adjustments to the distributions should be made to reflect the tax advantages that flow to MLPs,73 the alleged distortions that result from incentive distributions to the general partner,74 and the fact that distributions may also include cash derived from the sale of assets, bond issues, and the issuance of further limited partnership units.75 Several also assert that for an MLP’s distribution to be comparable to that of a corporation, the percentage of the MLP’s distribution included in the DCF model should be no higher than the percentage of earnings corporations typically include in their dividend payments, or about 60 percent.76 Finally, to the extent that INGAA and others assert that depreciation is not a direct source of cash flow for distribution, the Customer Interests cite to investor literature and MLP filings with the SEC disclosure that state exactly the opposite.77 71 INGAA initial comments at 18; MidAmerica initial comments at 6. 72 AOPL initial comments at 24-25; Spectra Energy initial comments at 17-18. 73 Crowley Energy at 2; Indicated Shippers initial comments at 24; PSCNY initial comments at 12-13; Society initial comments, passim P filings with the SEC disclosure that state exactly the opposite.77 71 INGAA initial comments at 18; MidAmerica initial comments at 6. 72 AOPL initial comments at 24-25; Spectra Energy initial comments at 17-18. 73 Crowley Energy at 2; Indicated Shippers initial comments at 24; PSCNY initial comments at 12-13; Society initial comments, passim. 74 APGA at 7-8; Crowley Energy at 2; Indicated Shippers comments at 24; NGSA at 6; Society initial comments passim. 75 Crowley Energy initial comments; Society, passim; Tesoro reply comments at 26. 76 CAPP initial comments at 3, 6; Indicated Shippers initial comments at 23; PSCNY initial comments at 6; Tesoro initial comments at 15. 77 APGA initial comments at 11; CAPP reply comments at 3-4; NGSA reply comments at 9-10; Tesoro reply comments at 19-21. Docket No. PL07-2-000 - 24 - 2. Discussion 57. The Commission concludes that a proposed earnings cap on the MLP distributions that would be included in the DCF model should not be adopted. On further review, the Commission concludes that its concern with the distinction between return on capital and return of capital improperly conflates cost-of-service rate-making techniques with the market-driven DCF method used for determining the pipeline’s cost of obtaining capital in the equity markets. This is inconsistent with the DCF model’s internal structure. 58. The fundamental premise of the DCF model is that a firm’s stock price should equal the present value of its future cash flows, discounted at a market rate commensurate with the stock’s risk. No commenter seriously contends that an investor would distinguish between cash flows attributable to return on capital, and those attributable to return of capital, in performing a DCF analysis. In short, under the DCF model, all cash flows, whatever their source, contribute to the value of stock value of its future cash flows, discounted at a market rate commensurate with the stock’s risk. No commenter seriously contends that an investor would distinguish between cash flows attributable to return on capital, and those attributable to return of capital, in performing a DCF analysis. In short, under the DCF model, all cash flows, whatever their source, contribute to the value of stock. The Commission agrees that, since the DCF model uses the total unadjusted cash flows to determine a stock’s value, it is theoretically inconsistent to use lower adjusted cash flows when using the DCF model to determine the return required by investors purchasing the stock. 59. More specifically, the investor first determines what risk should be attributed to a prospective investment and the related return that would be required in order to make the investment. For example, the investor may conclude that the minimum return from the investment must be 10 percent on equity. The investor then looks at the total cash flows from all sources over time, including the current distribution (or dividend) and its projected growth. The DCF model yields a price for the share that reflects the present value of those cash flows at the discount rate. 60. In contrast, the Commission solves the DCF formula for the return required by the investor, not the price of the stock. This results in the Commission calculating the proxy firm’s ROE as the sum of (1) the proxy firm’s dividend yield and (2) the projected growth rate. The Commission determines dividend yield by dividing the proxy firm’s cash distribution (or dividend) by its current stock price. As the court in Petal pointed out, both the stock price and distribution (or dividend) figures of the proxy firms are market-determined ommission calculating the proxy firm’s ROE as the sum of (1) the proxy firm’s dividend yield and (2) the projected growth rate. The Commission determines dividend yield by dividing the proxy firm’s cash distribution (or dividend) by its current stock price. As the court in Petal pointed out, both the stock price and distribution (or dividend) figures of the proxy firms are market-determined. Moreover, an investor’s projection of the MLP’s growth prospects would be affected by the actual level of its distributions, with distributions in excess of earnings generally perceived as reducing the growth projection because less cash flow is available for reinvestment in the firm.78 The pipeline industry generally acknowledged 78 Because a corporation typically retains a portion of its earnings, general financial theory suggests that it is able to use internally generated funds to obtain a higher growth rate. An MLP’s higher level of distributions theoretically produces a lower projected growth rate. In fact, the most recent IBES projections for the four corporations (continued…) Docket No. PL07-2-000 - 25 - this fact in earlier rate proceedings as well as in this proceeding, or at least until its later phases.79 As illustrated in Appendix B to this Policy Statement, a DCF analysis using market-determined inputs for each of the variables in the DCF formula appropriately determines, consistent with Petal, the percentage return on equity a pipeline must offer in the equity market in order to attract investors, whether the proxy firms are corporations or MLPs. 61 or at least until its later phases.79 As illustrated in Appendix B to this Policy Statement, a DCF analysis using market-determined inputs for each of the variables in the DCF formula appropriately determines, consistent with Petal, the percentage return on equity a pipeline must offer in the equity market in order to attract investors, whether the proxy firms are corporations or MLPs. 61. If the Commission were to cap the distribution used to determine an MLP’s dividend yield at below the market-determined level, but use the actual market price of the MLP’s publicly traded units and a growth projection reflecting the actual level of distributions, the DCF analysis would fail to achieve its intended purpose of determining the return the equity market requires in order to justify an investment in the pipeline. That is because there would be a mismatch among the inputs the Commission used for the variables in the DCF formula. The DCF analysis presumes that the market value of an MLP’s units is a function of the entire present and future cash flow provided by an investment in those units. Given this interlocking nature of the variables in the DCF formula, INGAA and the other pipeline commenters are correct that limiting the distribution input to earnings, while using market values for the other inputs to the DCF formula, would result in the calculation of a return below that implied in the share price.80 included in the gas pipeline proxy group in Appendix A average 10.5 percent, while the IBES growth projections for the six MLPs average only 6.67 percent. 79 See AOPL Initial Comments, Williamson Aff urn below that implied in the share price.80 included in the gas pipeline proxy group in Appendix A average 10.5 percent, while the IBES growth projections for the six MLPs average only 6.67 percent. 79 See AOPL Initial Comments, Williamson Aff. at 6-7; AOPL Reply Comments at 6-7; Panhandle Initial Comments, Attachment dated August 30, 2007, Analysis of the Use of MLPs in the Group of Proxy Companies Used For Determining Gas and Oil Pipeline Return on Equity at 10-11; Transwestern Pipeline Company, LLC, Docket No. RP06-614-000, Ex. TW-56 filed September 29, 2006, at 23-24; High Island Offshore System, L.L.C., Docket No. RP96-540-000, Ex. HIO-73 filed August 26, 2006 at 28-29; Texaco Refining and Marketing Inc, et al. v. SFPP, L.P., Docket No. OR96-2-012, Ex. SEP SFPP-56 dated February 14, 2005 at 9-10; Mojave Pipeline Company, Docket No. RP07-310-000, Ex. MPC-70 dated February 2, 2007 at 28-32 (including tables and charts on the relative growth rates of corporations and MLPs); Kern River Gas Transmission Company, Docket No. RP04-274-000, Ex. KR-107 at 17. 80 The earnings cap on the distribution would artificially reduce an MLP’s dividend yield below that assumed by the investor in valuing the stock. Adding the artificially reduced dividend yield to a growth projection that reflects the MLP’s reduced growth prospects due to its high actual distributions would inevitably result in an ROE lower than that actually required by the market. at 17. 80 The earnings cap on the distribution would artificially reduce an MLP’s dividend yield below that assumed by the investor in valuing the stock. Adding the artificially reduced dividend yield to a growth projection that reflects the MLP’s reduced growth prospects due to its high actual distributions would inevitably result in an ROE lower than that actually required by the market. Docket No. PL07-2-000 - 26 - 62. In addition, use of a proxy MLP’s full distribution in determining ROE will not cause a double recovery of the depreciation component included in the pipeline’s cost-of- service rates. In a rate case, the Commission determines the dollar amount of the ROE component of the cost-of-service of the pipeline filing the rate case by multiplying (1) the percentage return on equity required by the market by (2) the actual rate base of the pipeline in question. Having found that use of a proxy MLP’s full distribution is necessary for the DCF analysis to accurately determine the percentage return on equity required by the equity markets, it necessarily follows that the same percentage should be used in determining the dollar amount of the ROE component of the pipeline’s cost of service. Awarding the pipeline an ROE allowance based on that percentage of its own rate base will give the pipeline an opportunity to provide its investors with the return on their investment required by the market. Such an ROE allowance does not implicate the separate depreciation allowance the Commission also includes in a pipeline’s cost of service to provide for return of investment. 63. The Commission therefore concludes that it is not analytically sound to cap the distributions to be included in the DCF model by the MLP’s earnings. As discussed below, the record is more convincing that if any adjustment is required, this issue centers on the projected growth of the MLPs. Given this, it is not necessary to discuss the appropriate level for any earnings cap. 64 t. 63. The Commission therefore concludes that it is not analytically sound to cap the distributions to be included in the DCF model by the MLP’s earnings. As discussed below, the record is more convincing that if any adjustment is required, this issue centers on the projected growth of the MLPs. Given this, it is not necessary to discuss the appropriate level for any earnings cap. 64. Having concluded that an earnings cap adjustment would be inappropriate, the Commission also concludes that it is not necessary to address the long term sustainability of MLPs as a whole, or those of the particular MLP whose rates are under review. As has been discussed, the DCF model has two components. One is the cash distribution in the current period and the second is the discounted value of the anticipated growth in that distribution. The increase in distribution is driven by the anticipated growth in earnings that generates the cash to be used for the distribution. If projected earnings suggest that the distribution cannot be sustained, this will be reflected in the projected cash flow for the firm and ultimately the MLP unit price.81 In this regard, some MLPs will inevitably do better and others not as well, and from the Commission’s point of view, this will be reflected in the required rate of return developed by the DCF model. 65. For this reason, as the Pipeline Interests suggest, if an MLP’s financial condition or growth rate is outside the norm for the industry, or is unrepresentative, the best way to deal with this issue is to exclude that particular MLP from the proxy group sample, just 81 The investor requires a minimum return that reflects the perceived risk of the investment. Thus, if the cash flows decline, so will the price of the stock assuming the percentage return required remains the same. y, or is unrepresentative, the best way to deal with this issue is to exclude that particular MLP from the proxy group sample, just 81 The investor requires a minimum return that reflects the perceived risk of the investment. Thus, if the cash flows decline, so will the price of the stock assuming the percentage return required remains the same. Docket No. PL07-2-000 - 27 - as the Commission has done with unrepresentative diversified gas corporations. Finally, the Commission has previously held that the issue of whether MLPs are an appropriate investment vehicle for the pipeline industry as a whole is a matter that is best left for Congress, the body that authorized MLPs in the first instance. Thus the Commission will not address that issue, or the appropriateness of the tax deferral aspects of MLPs further in this proceeding.82 Nothing presented at the technical conference warrants different conclusions. 66. The Commission now turns to the issue of how to project the growth rates of MLPs. For the reasons discussed below, the Commission finds that the differences between MLPs and corporations, and particularly the MLPs’ lower growth prospects due to their distributions in excess of earnings, are appropriately accounted for in the growth projection component of the DCF model. C. The Short Term Growth Component 67. This section of the Policy Statement discusses whether changes should be made to the short-term growth component of the DCF model. For the short-term growth estimate the Commission currently uses security analysts’ five-year forecasts for each company in the proxy group, as published by IBES. IBES is a service that monitors the earnings estimates on over 18,000 companies of interest to institutional investors. More than 850 firms contribute data to IBES to be used in its projections and the information is provided on a subscription basis. 1. Comments 68 on currently uses security analysts’ five-year forecasts for each company in the proxy group, as published by IBES. IBES is a service that monitors the earnings estimates on over 18,000 companies of interest to institutional investors. More than 850 firms contribute data to IBES to be used in its projections and the information is provided on a subscription basis. 1. Comments 68. The Pipeline Interests support the continued use of five-year IBES forecasts for short-term growth projections in the DCF model with regard to MLPs. In general, they argue that, while no growth forecast is perfect, IBES provides the best available information regarding what investors expect in companies. They state that IBES estimates are unbiased and publicly available. They add that since IBES estimates are company-specific, they already adjust for any differences among the entities analyzed, including whether the company is organized as an MLP or corporation. 82 See SFPP, L.P., 121 FERC ¶ 61,240, at P 20-61 (2007) for an extensive discussion of these income tax allowance and tax deferral policy issues relating to MLPs. Moreover, any tax advantages are normally reflected in the MLP unit price. See also INGAA Reply Comments at 12-13; MidAmerica, Reply Comments at 4-5; AOPL Reply Comments at 11-12; Tr.121-22; AOPL Post-Technical Conference Comments at 14. SFPP, L.P., 121 FERC ¶ 61,240, at P 20-61 (2007) for an extensive discussion of these income tax allowance and tax deferral policy issues relating to MLPs. Moreover, any tax advantages are normally reflected in the MLP unit price. See also INGAA Reply Comments at 12-13; MidAmerica, Reply Comments at 4-5; AOPL Reply Comments at 11-12; Tr.121-22; AOPL Post-Technical Conference Comments at 14. Docket No. PL07-2-000 - 28 - 69. For example, NAPTP supports the IBES estimates because the various items that may affect the growth rate expected by the market, such as the effect of IDRs to the general partner, are already factored into IBES projections.83 Williston Basin argues that since IBES data is drawn from many financial analysts, and since the information is widely accepted in the financial industry, use of IBES helps reduce subjectivity when estimating appropriate short-term growth forecasts.84 TransCanada acknowledges that IBES may underestimate short-term growth for MLPs, but argues that modifying IBES would only further understate short-term growth rates and compound any problems brought on by trying to estimate growth for MLPs.85 The AOPL similarly argues that studies have shown that IBES estimates understate short-term growth rates for MLPs and therefore the growth projections are conservative.86 70. However, certain parties recommend that the Commission discontinue using IBES estimates for MLPs to project short-term growth rates in its DCF model. These parties argue there is considerable uncertainty of whether the individual forecasts IBES is reporting reflect earnings growth or distribution growth. The State of Alaska asserts that IBES growth estimates of distributions per share are incomplete and unreliable for use in the DCF calculation. It argues that there are not a sufficient number of stock analysts providing IBES with distribution per share growth estimates to get a reliable estimate for the purposes of calculating the cost of equity for pipeline companies r distribution growth. The State of Alaska asserts that IBES growth estimates of distributions per share are incomplete and unreliable for use in the DCF calculation. It argues that there are not a sufficient number of stock analysts providing IBES with distribution per share growth estimates to get a reliable estimate for the purposes of calculating the cost of equity for pipeline companies. Speaking for the State of Alaska, Dr. Thomas Horst notes that of the 37 gas and oil companies he examined data for, there was not a single case where IBES received two or more estimates of distributions per share growth rates.87 71. APGA states that through communications with personnel at Thompson Financial, the owner of IBES and the publisher of its forecasts, it verified that the five-year analysts’ growth rate projections reported by IBES for MLPs are projections of earnings per unit, and not distributions per unit.88 PSCNY also considers IBES projections unreliable, since 83 NAPTP, Initial Technical Conference Comments at 3. 84 Williston, Additional Comments dated December 21 at 2. 85 TransCanada, Additional Comments dated December 21 at 12-13. 86 AOPL, Initial Technical Conference Comments at 5, Williamson Post-Technical Conference Aff. at 3, 8. 87 State of Alaska, Reply Comments dated February 20 at 5. 88 APGA, Reply Technical Conference Comments at 5-6. 83 NAPTP, Initial Technical Conference Comments at 3. 84 Williston, Additional Comments dated December 21 at 2. 85 TransCanada, Additional Comments dated December 21 at 12-13. 86 AOPL, Initial Technical Conference Comments at 5, Williamson Post-Technical Conference Aff. at 3, 8. 87 State of Alaska, Reply Comments dated February 20 at 5. 88 APGA, Reply Technical Conference Comments at 5-6. Docket No. PL07-2-000 - 29 - they do not account for such parameters as IDRs. It questions whether analysts can truly estimate MLP growth beyond two years. It also questions whether lower earnings retention necessarily would translate into lower short-term IBES growth rates relative to corporations.89 CAPP expresses concerns that the analysts that produce IBES growth estimates continue to be concentrated within the same financial institutions that also underwrite the securities of the subject companies, invest in those securities, and furnish other financial services to the subject enterprises90 and also notes the uncertainty of whether the forecasts are for earnings or distributions.91 72. However AOPL maintains that historical records confirm that what analysts actually report to IBES is distribution growth. It adds that Yves Siegel, Wachovia’s representative, confirmed that Wachovia provides projected MLP distribution growth to IBES, and not earnings growth.92 NAPTP asserts that, for projecting the short-term growth rates of MLPs, the Commission should use analysts forecasts of growth in the MLP’s distributable cash flow for all of its equity holders and that, while not perfect, this is the best information that is available.93 2. Discussion 73. The Commission’s longstanding policy is to use security analysts’ five-year growth forecasts as reported by IBES to determine the short-term growth rates for each proxy company. In Opinion No 414-A,94 the Commission explained that the growth rate to be used in the DCF model is the growth rate expected by the market his is the best information that is available.93 2. Discussion 73. The Commission’s longstanding policy is to use security analysts’ five-year growth forecasts as reported by IBES to determine the short-term growth rates for each proxy company. In Opinion No 414-A,94 the Commission explained that the growth rate to be used in the DCF model is the growth rate expected by the market. Thus, the Commission seeks to base its growth projections on “the best evidence of the growth rates actually expected by the investment community.”95 Moreover, the Commission stated, the growth rate expected by the investment community is not, quoting a Transco witness, “necessarily a correct growth forecast; the market may be wrong. But the cost of 89 NYPSC Initial Technical Conference Comments at 5-6. 90 CAPP Supplemental Comments dated December 21 at 3-4. 91 CAPP Initial Technical Conference Comments at 7. 92 AOPL Initial Technical Conference Comments at 4-5. 93 NAPTP Post-Technical Conference Comments at 1-3. 94 85 FERC ¶ 61,323 at 62,268-9. 95 Id. at 62,269. Docket No. PL07-2-000 - 30 - common equity to a regulated enterprise depends upon what the market expects not upon precisely what is going to happen.”96 74. The Commission held that the IBES five-year growth forecasts for each company in the proxy group are the best available evidence of the short-term growth rates expected by the investment community. It cited evidence that (1) those forecasts are provided to IBES by professional security analysts, (2) IBES reports the forecast for each firm as a service to investors, and (3) the IBES reports are well known in the investment community and used by investors r each company in the proxy group are the best available evidence of the short-term growth rates expected by the investment community. It cited evidence that (1) those forecasts are provided to IBES by professional security analysts, (2) IBES reports the forecast for each firm as a service to investors, and (3) the IBES reports are well known in the investment community and used by investors. The Commission has also rejected the suggestion that the IBES analysts are biased and stated that “in fact the analysts have a significant incentive to make their analyses as accurate as possible to meet the needs of their clients since those investors will not utilize brokerage firms whose analysts repeatedly overstate the growth potential of companies.”97 75. Based on the comments, the Commission concludes that the IBES five-year growth forecasts should also be used for any MLP included in the proxy group. While the Commission recognizes that there may be some statistical limitations to the IBES projections, the record here demonstrates that it remains the best and most reliable source of growth information available. IBES publishes security analysts’ five-year growth forecasts for MLPs in the same manner as for corporations. No party questions the Commission’s findings in past cases that investors rely on the IBES projections in making investment decisions, because they are widely available and generally reflect the input of a number of financial analysts. Also, since IBES projections are company- specific, they should already adjust for any differences among the entities analyzed, including any reduced growth prospects investors expect due to the fact an MLP makes distributions in excess of earnings. In fact, the most recent IBES projections for the seven MLPs included in the gas pipeline proxy group in Appendix A, Table 1, average 6.86 percent, while the IBES growth projections for the four corporations average of 10.75 percent ifferences among the entities analyzed, including any reduced growth prospects investors expect due to the fact an MLP makes distributions in excess of earnings. In fact, the most recent IBES projections for the seven MLPs included in the gas pipeline proxy group in Appendix A, Table 1, average 6.86 percent, while the IBES growth projections for the four corporations average of 10.75 percent. Thus, those MLP growth projections are about 400 basis points below those for the corporations. 76. As discussed above, several parties assert that the security analysts’ five-year growth forecasts appear generally to be forecasts of growth in earnings, rather than distributions. They point out that the relevant cash flows for the DCF model are the MLP’s distributions to the limited partners, and therefore the growth projections used in the DCF analysis should be growth in distributions, not earnings. Despite these concerns, the Commission again concludes that the IBES short-term growth projections provide the 96 Id. 97 Transcontinental Gas Pipe Line Corp., 90 FERC ¶ 61,279, at 61,932 (2000). Docket No. PL07-2-000 - 31 - best estimate of short-term growth rates for MLP distributions. Professor J. Peter Williamson, on behalf of AOPL, reviewed historical IBES five-year growth forecasts for five oil pipeline MLPs since the mid-1990s. IBES had published five to nine growth forecasts for each the MLPs, with a total of 39 forecasts. Williamson compared each of these 39 forecasts to the MLP’s actual growth in earnings and distributions during the subsequent five-year period. He found that 29 of the 39 IBES five-year forecasts, or 74 percent, were closer to the actual average distribution growths over that time span than the actual earnings growths ne growth forecasts for each the MLPs, with a total of 39 forecasts. Williamson compared each of these 39 forecasts to the MLP’s actual growth in earnings and distributions during the subsequent five-year period. He found that 29 of the 39 IBES five-year forecasts, or 74 percent, were closer to the actual average distribution growths over that time span than the actual earnings growths. In his study, Williamson also found that historical records fail to support any claims that the IBES forecasts are biased or tend to overstate future growth.98 In fact, 22 of the 39 forecasts were lower than the actual distribution growth, and 17 were higher. Thus, far from showing a pattern of overestimating actual growth in distributions, the IBES growth projections underestimated growth in distributions 56 percent of the time, a conservative result. Accordingly, regardless of whether financial analysts stated they are reporting projected earnings growth or projected distribution growth for MLPs, the Commission finds the five-year growth rates that IBES reports are acceptable since they closely approximate distribution growth for MLPs, which is the short-term input for the DCF model. 77. As noted, the State of Alaska expresses concerns that there are an insufficient number of stock analysts providing IBES with estimates which are expressly identified at forecasts of MLP distribution per share growth to obtain reliable short-term growth projections for MLPs. At the technical conference, Mr. Horst presented a chart showing the number of IBES report counts for 37 oil and gas pipeline companies – both corporations and MLPs. The chart breaks the analyst report counts down into earnings reports and distribution reports re expressly identified at forecasts of MLP distribution per share growth to obtain reliable short-term growth projections for MLPs. At the technical conference, Mr. Horst presented a chart showing the number of IBES report counts for 37 oil and gas pipeline companies – both corporations and MLPs. The chart breaks the analyst report counts down into earnings reports and distribution reports. It shows that analysts made an average of 3.1 earnings reports for each MLP and an average of 0.8 distribution reports for each MLP.99 However, as discussed above, Williamson’s analysis of a historical period suggests that actual MLP growth in the short term tracks IBES earnings projections better than distribution projections. Moreover, Mr. Horst’s averages include many smaller, less frequently traded MLPs and thus understate the number of analysts that are likely to follow the larger, more established pipeline MLPs likely to be included in a proxy group. The Commission therefore concludes that the number of reports made by analysts for oil and gas companies MLPs is acceptable for use in the DCF model. 98 AOPL, Post-Technical Conference Comments, Williamson Aff. at 2-6. 99 State of Alaska, Comments dated December 21, Second Horst Aff. at 4-5; Reply Comments dated February 20 at 5, Third Horst Aff. at 16-17, 21. Docket No. PL07-2-000 - 32 - 78. Some of the Customer Interests are agreeable to the continued use of IBES forecasts, but only under certain conditions. Specifically, PSCNY contends that, should the Commission continue to use IBES forecasts in its DCF model, any MLP the Commission allows in a proxy group must be market-tested and representative of a natural gas pipeline company -17, 21. Docket No. PL07-2-000 - 32 - 78. Some of the Customer Interests are agreeable to the continued use of IBES forecasts, but only under certain conditions. Specifically, PSCNY contends that, should the Commission continue to use IBES forecasts in its DCF model, any MLP the Commission allows in a proxy group must be market-tested and representative of a natural gas pipeline company. PSCNY contends that IBES would be acceptable if the MLP is tracked by Value Line, has been in operation for at least five years as an MLP, and derives 50-percent of its operating income from, or has 50 percent of its assets devoted to, interstate natural gas transportation operations. PSCNY also contends that the Commission should exclude MLPs from proxy groups when their growth projections are illogical or anomalous.100 79. The Commission agrees in principle with PSCNY’s position that IBES forecasts should only be used for an MLP that is tracked by Value Line, has been in operation for at least five years as an MLP, and derives at least 50 percent of its operating income from, or 50 percent of its assets devoted to, interstate operations. Thus, when developing its proxy group, a pipeline should select MLPs that are well established and have assets that are predominantly gas and oil pipelines. Such pipelines are those most likely to have risk comparable to the pipeline seeking to justify its rates. However, there may be particular MLPs that do not satisfy these criteria, but are still appropriate for inclusion in the proxy group. The pipeline must justify including such an MLP in its proxy group. Thus, while the Commission encourages pipelines to follow the guidelines suggested by PSCNY, it will not make them a condition of including a particular MLP in the proxy group. As suggested by the parties, the Commission will continue to exclude an MLP from the proxy groups if its growth projection is illogical or anomalous. 80 eline must justify including such an MLP in its proxy group. Thus, while the Commission encourages pipelines to follow the guidelines suggested by PSCNY, it will not make them a condition of including a particular MLP in the proxy group. As suggested by the parties, the Commission will continue to exclude an MLP from the proxy groups if its growth projection is illogical or anomalous. 80. Two parties state that, should the Commission continue to use IBES projections to estimate short-term growth rates in its DCF model for MLPs, it must modify the estimated rates. Tesoro states that, if the Commission makes no adjustments to dividend distributions of MLPs, it should significantly reduce its IBES short-term growth estimates to recognize the fact that an MLP cannot indefinitely sustain its operations when distributions consistently exceed earnings. It argues that, if the Commission caps MLP distributions at earnings, it would still have to reduce IBES rates in order to recognize the fact that proxy group members would not be reinvesting retained earnings in ongoing operations, thereby achieving lower growth rates. Tesoro only recommends no adjustments to short-term growth estimates if the Commission caps distributions at a level below earnings, offering 65-percent of earnings as an example.101 100 PSCNY Supplemental Comments dated Dec. 21 at 3-5. 101 Tesoro, Comments on Growth dated December 21 at 3-4, 5-7. rations, thereby achieving lower growth rates. Tesoro only recommends no adjustments to short-term growth estimates if the Commission caps distributions at a level below earnings, offering 65-percent of earnings as an example.101 100 PSCNY Supplemental Comments dated Dec. 21 at 3-5. 101 Tesoro, Comments on Growth dated December 21 at 3-4, 5-7. Docket No. PL07-2-000 - 33 - 81. The State of Alaska recommends that if a pipeline company’s distributions per share exceed its earnings per share (as is frequently the case with pipeline MLPs), then the expected growth rate of the pipeline’s distributions per share should be adjusted to equal (1) the expected growth of its earnings per share, multiplied by (2) the ratio of the pipeline’s earnings per share to its distributions per share. According to Alaska, if a pipeline company distributes more cash than its current earnings, then the projected growth in earnings per share should also be adjusted by the ratio of the pipeline’s earnings per share to its distributions per share.102 82. The Commission rejects these proposals by Tesoro and the State of Alaska. As already discussed, to the extent investors expect an MLP’s distributions in excess of earnings to reduce its growth prospects, that fact should be reflected in the IBES five- year growth projections themselves, without the need for any further adjustment. MLPs must publicly report their earnings and distribution levels. Therefore, the security analysts are aware of the degree to which each MLP is making distributions in excess of earnings. The security analysts presumably take that information, together with all other available information concerning the MLP, into account when making their projections. Moreover, these proposals would have a similar effect as capping the distributions used to calculate dividend yield at or below the level of the MLP’s earnings ree to which each MLP is making distributions in excess of earnings. The security analysts presumably take that information, together with all other available information concerning the MLP, into account when making their projections. Moreover, these proposals would have a similar effect as capping the distributions used to calculate dividend yield at or below the level of the MLP’s earnings. For the reasons previously discussed, the Commission finds that any cap on an MLP’s distributions used in the DCF model at a level below the actual distribution is inconsistent with the basic operation of the DCF model. Thus, using a straight IBES five-year projection without modification presents the best method of estimating an MLP’s short-term growth rate. 83. APGA further suggests revising IBES growth rates by averaging them with the comparable growth forecasts reported by Zacks Investment. It states that this averaging could help remove anomalous or outlying growth rates. It offers as an example, on December 10, 2007, IBES projected a five-year growth rate of 7.60 percent for Kinder Morgan Energy Partners (KMEP), whereas Zacks Investment projected a 33.70 percent growth rate for that company. APGA argues that the Commission should also use Value Line reports to test the reasonableness of projected growth rates for MLPs.103 84. The Commission will not require that IBES growth rates be averaged with the corresponding company’s growth rates as reported for Zacks Investment at this time, or 102 State of Alaska, Comments dated Dec. 21 at 3-4; Second Horst Aff. at 2-3, 5- 11. 103 APGA, Additional Comments dated Dec. 21 at 3, 9-10. f projected growth rates for MLPs.103 84. The Commission will not require that IBES growth rates be averaged with the corresponding company’s growth rates as reported for Zacks Investment at this time, or 102 State of Alaska, Comments dated Dec. 21 at 3-4; Second Horst Aff. at 2-3, 5- 11. 103 APGA, Additional Comments dated Dec. 21 at 3, 9-10. Docket No. PL07-2-000 - 34 - that Value Line reports be used to test the reasonableness of projected growth rates for MLPs. Finally, PSCNY requests that the Commission clarify that Thomson Financial Data posted on Yahoo.com may be used in the DCF formula, since Thomson Financial owns IBES.104 The Commission clarifies that the growth projections to be used in the DCF model are those reported by IBES. If they are the same growth projections posted by Thomson Financial Data on Yahoo.com, then they are acceptable for the DCF model. D. The Long Term Growth Component 1. Comments 85. As this point the critical issue is whether the long term growth component of the Commission’s DCF methodology should be modified in determining the equity cost of capital for an MLP. As has been discussed, for more than a decade the Commission has required that projected long-term growth in GDP be used as the corporate long term (terminal) growth component of the DCF calculation. The discussion at the technical conference disclosed four general positions. The AOPL,105 NAPTP,106 INGAA,107 and TransCanada108 asserted that the use of long term GDP is equally applicable to MLPs as to corporations.109 However, the APGA,110 PSCNY,111 and the State of Alaska112 all 104 PSCNY, Supplemental Comments dated Dec. 21 at 5. 105 AOPL, Post-Technical Conference Comments at 7-9, 13. 106 NAPTP Additional Comments dated Dec. 21 at 1, 10-11; Post-Technical Conference Comments at 4-8. 107 INGAA, Additional Initial Comments dated Dec s as to corporations.109 However, the APGA,110 PSCNY,111 and the State of Alaska112 all 104 PSCNY, Supplemental Comments dated Dec. 21 at 5. 105 AOPL, Post-Technical Conference Comments at 7-9, 13. 106 NAPTP Additional Comments dated Dec. 21 at 1, 10-11; Post-Technical Conference Comments at 4-8. 107 INGAA, Additional Initial Comments dated Dec. 21 at 2-3; Post-Technical Conference Reply Comments at 3-6. 108 TransCanada Post-Technical Comments at 2-5. 109 MidAmerican and Williston supported this position. 110 APGA Additional Comments dated Dec. 21 at 4, 7-8; Initial Post-Technical Comments at 2, J. Bertram Solomon Aff. at 4-8. 111 PSCNY, Supplemental Comments dated Dec. 21 at 5, 8-9 and appended Prepared Statement of Patrick J. Barry for the January 23, 2008 Technical Conference; Initial Post-Technical Conference Comments at 14-16. 112 State of Alaska, Comments dated Dec. 21 at 3-4 and Second Horst Aff. at 3, 5- (continued…) Docket No. PL07-2-000 - 35 - made suggestions for a reduction to the GDP growth projection to reflect the different retention and investment practices of MLPs.113 In a different vein, INGAA suggested the use of the average of the projected long term inflation rate and projected long term GDP as a proxy for the lower growth rate of the limited partnership interests, but only if the Commission concluded that some reduction in the MLP long term growth rate was warranted.114 NAPTP further argued that there must be an upward adjustment of the limited partnership growth rate to reflect the equity cost of capital of the limited and general partners, and thus that of the entire firm.115 86. The Pipeline Interests also generally assert that an MLP’s terminal growth can be at least equal to that of a corporation, and perhaps exceed it. They assert that MLPs are able to raise external capital in a tax efficient manner ustment of the limited partnership growth rate to reflect the equity cost of capital of the limited and general partners, and thus that of the entire firm.115 86. The Pipeline Interests also generally assert that an MLP’s terminal growth can be at least equal to that of a corporation, and perhaps exceed it. They assert that MLPs are able to raise external capital in a tax efficient manner. Because an MLP does not retain cash it does not immediately need and can distribute without the tax penalty, it is under less pressure to invest idle capital. Rather, an MLP can wait until sounder investment opportunities are available and pursue them more discreetly, which results in a more consistent return from the projects selected.116 Moreover, while the computation is very complicated, the tax-deferral aspects of MLP limited partnership interest normally result in a higher per unit price when issued and thus a lower cost of equity capital to the issuing MLP. For these reasons the Pipeline Interests conclude that MLPs should readily find profitable investment opportunities despite their lower retention ratios.117 87. The Pipeline Interests further assert that the record demonstrates that MLPs have a long term history of growing distributions and an overall growth rate that has at times been higher than that of corporations.118 They cite to the example of KMEP in particular 7. Reply Comments dated February 20, 2008 at 6. 113 NGPA and Tesoro also supported a lower long term growth rate for MLPs. 114 INGAA Additional Initial Comments dated Dec. 21 at 3-4 and Vilbert Report attached thereto, passim; 115 NAPTP Reply Comments dated Sept. 19 at 2-4; Additional Comments dated Dec. 21 at 9-12. 116 NAPTP Post-Technical Conference Comments at 9; TransCanada Post Technical Conference Comments at 8-9. 117 NAPTP, id. 2, 5-6. TransCanada, id o supported a lower long term growth rate for MLPs. 114 INGAA Additional Initial Comments dated Dec. 21 at 3-4 and Vilbert Report attached thereto, passim; 115 NAPTP Reply Comments dated Sept. 19 at 2-4; Additional Comments dated Dec. 21 at 9-12. 116 NAPTP Post-Technical Conference Comments at 9; TransCanada Post Technical Conference Comments at 8-9. 117 NAPTP, id. 2, 5-6. TransCanada, id. 118 NAPTP Additional Comments dated Dec. 21 at 4-8, Docket No. PL07-2-000 - 36 - and that KMEP has been able to grow its distributions in good or poor financial environments.119 They therefore conclude that there is no reason to conclude that MLPs cannot continue to grow at least as fast as corporations or that the relatively high distribution growth rate for the industry as a whole will not be sustained.120 However, INGAA concedes that even if an MLP as a whole can grow as fast as a corporation, the limited partnership interests would grow less rapidly than the MLP as a whole because of the IDRs121 most MLPs have granted their general partners.122 The Pipeline Interests also argue that investors will not invest in enterprises that have a projected growth rate that is less than GDP and that such firms are likely to fail.123 119 NAPTP Additional Comments dated December 21 at 8. 120 NAPTP and Post-Technical Conference Comments at 11-12 AOPL Post- Technical Conference at 9-10 and Williamson Post Technical Conf. Aff. Ex. at 1 and 2. 121 IDRs operate as follows. Most MLP agreements provide that the limited partners own 98 percent of the equity when the firm is first created and the general partner 2 percent. Thus, given a distributable cash of $1,000, the limited partners would obtain $980 (98 percent) and the general partner $20.00 (2 percent) l Conference at 9-10 and Williamson Post Technical Conf. Aff. Ex. at 1 and 2. 121 IDRs operate as follows. Most MLP agreements provide that the limited partners own 98 percent of the equity when the firm is first created and the general partner 2 percent. Thus, given a distributable cash of $1,000, the limited partners would obtain $980 (98 percent) and the general partner $20.00 (2 percent). The partnership agreement also provides that as the total cash available for distribution increases, a greater share goes to the general partner, including that which would be available in liquidation. For example, the partnership agreement may provide that once distributable cash is $3,000, the general partner will receive 2 percent based on its partnership interest and 48 percent based on the IDRs. At that point the limited partners’ share of the distribution is $1,500 (50 percent) and the general partner’s share is also $1,500 (50 percent). Thus, while the limited partners’ distribution has grown in the relevant time frame (by 50 percent), it has not grown as fast as it would have absent the general partner’s IDR. Absent the IDR the general partner’s share would only be $60. Since a proportionately smaller share of future value flows to the limited partners in the initial years, the projected long term growth rate for a limited partnership interest will be lower. Therefore the limited partnership interests have lower return than that of the general partner. 122 INGAA Additional Initial Comments dated December 21 at 5; TransCanada. 123 AOPL, Post-Technical Comments at 7-8. TransCanada, Additional Comments dated Dec. 21 at 2, 4-5. ited partners in the initial years, the projected long term growth rate for a limited partnership interest will be lower. Therefore the limited partnership interests have lower return than that of the general partner. 122 INGAA Additional Initial Comments dated December 21 at 5; TransCanada. 123 AOPL, Post-Technical Comments at 7-8. TransCanada, Additional Comments dated Dec. 21 at 2, 4-5. Docket No. PL07-2-000 - 37 - 2. Discussion a. Should the MLP long-term growth projection be lower than projected growth in GDP? 88. As discussed in the previous section, in determining the appropriate growth projections to use in its DCF analysis, the Commission seeks to approximate the growth projections investors would rely upon in making their investment decisions. This principle applies equally to the long-term growth projection, as to the sh [Text truncated at 120,000 characters. 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Check the current official text before relying on it. Not legal advice.