Draconian FTC Measures Punish IPP Wrongdoing

Draconian FTC Measures Punish IPP Wrongdoing
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
March 15, 2013

Summary: The Fair Trade Commission (FTC) has imposed Draconian punishments on nine Independent Power Producers (IPP) who sold electricity at high prices to Taipower. It charged these IPPs with colluding to fix the price of electrical power. Altogether, it imposed a harsh 6.32 billion NT in fines. Its action provided a sobering reminder to recalcitrant IPPs. It also provided Taipower with a shortcut by which to change the terms of its unequal contracts.

Full Text below:

The Fair Trade Commission (FTC) has imposed Draconian punishments on nine Independent Power Producers (IPP) who sold electricity at high prices to Taipower. It charged these IPPs with colluding to fix the price of electrical power. Altogether, it imposed a harsh 6.32 billion NT in fines. Its action provided a sobering reminder to recalcitrant IPPs. It also provided Taipower with a shortcut by which to change the terms of its unequal contracts.

Taipower has lost money in recent years, again and again. One reason is the sharp increase in Number Four Nuclear Power Plant (4NPP) construction costs. Another reason is unreasonable contracts. Taipower was compelled to pay high prices when purchasing electricity from IPPs. Meanwhile, the power plants Taipower invested in, were forced to remain idle. Over the past four years, Taipower's losses totalled 140 billion NT. IPPs on the other hand, could sell electricity at a guaranteed profit. They could easily earn six or seven hundred billion NT. Last year Taipower raised electricity rates. It passed its losses onto consumers. This led to massive public discontent. IPPs on the other hand, were unaffected. They refused to amend the terms of their unequal contracts.

These nine IPPs banded together to victimize a single public utility. Why could they get away with it? One reason was that the IPPs employed many retired Taipower senior officials. The relationship between parent companies and subsidiaries was complex and incestuous. Another reason was the passivity of the state-operated Taipower bureaucracy. It failed to seek redress consistent with the original terms of its contracts. It repeatedly insisted that it "could not win" any lawsuits. Its behavior was outrageous. It gave up without a fight. It had no intention of fighting.

This situation persisted until May of last year, when former chairman Chen Kui-ming was forced out and replaced by Vice Minister of Economic Affairs Huang Chung-chiu. Only then was Taipower's victimization reversed. Only then could Taipower counterattack. Huang Chung-chiu decided against a long, drawn-out lawsuit or arbitration. He chose instead to charge the nine IPPs with collusion. He demanded an FTC investigation. One could say he took a different path to the same destination. As a result, the FTC will be involved in the investigation. In less than half a year, he scored a victory.

According to the FTC report, these IPPs formed a so-called "Association for Advancement." Over a period of four years they met 27 times. They agreed to jointly resist Taipower's calls for adjustments in electricity prices. They agreed to keep each other informed about any correspondence between IPPs and Taipower. They shared intelligence and even tactics, including how to take advantage of delays in contract negotiations, how to cancel meetings, and how to deliberately complicate problems, leaving Taipower overwhelmed. The Association for Advancement was a united front by which IPPs victimized Taipower. Cooperation among them violates the Fair Trade Act prohibition against cartels. Such cartels influence the power generation market, and hurt the interests of consumers.

The FTC has imposed severe penalties. It is confident the IPPs engaged wrongdoing. It is punishing the IPPs for ignoring justice and thumbing its nose at the public. It is making a powerful statement. People have applauded its actions. IPPs were first established to compensate for the lack of diversification in generating capacity. But these IPPs have taken advantage of their licensed status to victimize Taipower. They undermined Taipower and impoverished the national treasury. They forced people to dig into their pockets to pay for their unjust enrichment. They refused to cease and desist. Hence the Draconian punishment. What else could highlight the absurdity and the injustice? These IPPs made 100 billion NT in profits per annum for years. A fine of six billion NT is a drop in the bucket.

Are the FTC fines a ploy to "bring about peace by declaring war?" How sad that the relationship between Taipower and the IPPs has come to this. It is time to return to the negotiating table. It is time for international energy prices to rise. Years ago IPPs asked Taipower to agree to fuel overhead rate increase. They knew that interest rates would change. Taipower requirements would lower fuel overhead rates. Yet the IPPs dragged their feet for five or six years and refused to negotiate. They seemed to forget that their relationship was supposed to be symbiotic. In fact, the state-owned enterprise goose laid golden eggs. Taipower profits turned into losses. It began purchasing electricity from IPPs. Once Taipower becomes unsustainable, whom will the IPPs take advantage of? Whom will they sell electricity to?

In recent years, Taipower has been under a black cloud of defeatism. It has muddled along without fighting spirit. Huang Chung-chiu's aggressiveness, and the FTC's iron fist have turned the tables. Strictly speaking the victory is not Taipower's. It is the peoples'. Taipower must complete this round of negotiations. Only then can it be counted as a victory. As for the IPPs that have enjoyed a windfall, they should appreciate their legal and social plight. They must not turn themselves into public enemies.

The FTC's Draconian measures have exposed the IPP's unscrupulous methods. But what the public really wants, is for the government to ferret out the policymakers responsible for the unequal contracts, i.e., those former Taipower officials within the IPPs. Only then can the price paid by Taipower all these years be accounted for.

公平會撒手?，民營電廠法理難容
【聯合報╱社論】
2013.03.15 03:11 am

對於九家高價賣電給台電的民營電廠，公平會使出撒手?，以業者聯合行為影響發電市場功能為由，開出總計六十三點二億元的重罰。此舉，不僅給執迷不悟的民營電廠一記當頭棒喝，也為台電修改不平等合約打開了一條捷徑。

台電近年虧損連連，除了核四興建成本急劇增加外，另一主要原因是受制於不合理合約，必須以高價向民營電廠購電，自身投資的電廠反而被迫閒置。過去四年，台電的累計虧損高達一千四百億元，而民營電廠光靠穩賺不賠的賣電生意，即輕鬆賺進六、七百億元。去年台電因而調高電價，將虧損轉嫁給消費者，引發漫天民怨；民營電廠卻依然無動於衷，拒絕修改不平等合約。

這種「九家合吃一家」的困境之所以難以突破，一則是各民營電廠部署了不少台電退休高層人員，母公司、子公司、孫公司關係層層糾結；二則是台電國營事業的官僚性格及消極主義作祟，對當初在特殊背景下簽訂的合約不僅不積極爭取扳回，甚至一再推稱訴訟「不會贏」。豈有此理，這不是「未戰先敗」，而根本是無意一戰。

此一局面，直到去年五月前董事長陳貴明被迫下台，由經濟部次長黃重球接任，才扭轉了台電「被吃定」的劣勢，展開絕地反攻。黃重球捨棄打合約官司或訴請仲裁的漫長道路，而選擇由九家電廠的「聯合行為」作為切入點，主動請求公平會調查，可謂另闢蹊徑轉進。結果，經公平會介入調查，短短不到半年，就見到了戰果。

從公平會公布的調查內容看，這些民營電廠組成了所謂的「協進會」，四年來聚會了廿七次，彼此約定合力共同抵制台電調整賣電合約的要求。不僅如此，只要有一家電廠和台電有函文往來，彼此就會互相通報，分享情報。甚至彼此不時交換戰術，如何利用拖延議約、取消會議、把問題複雜化等策略，讓台電窮於應付。這個協進會，其實就是民營電廠「吃台電」的統一陣線；他們之間的合作，正好觸犯了「公平交易法」所禁止的聯合行為，影響了發電市場的公平，損害了消費者的權益。

公平會這次祭出如此嚴厲的裁罰，除確實掌握到了業者的不法行為，也是對民營電廠罔顧公義、罔顧社會的迎頭痛擊。其強力宣示的意義，讓人鼓掌稱快。其實，當初民營電廠的開放設立，是為了彌補台灣電力供應多元化的不足；但這些電廠卻利用自己的特許地位來反噬台電，不僅損及台電繳庫盈餘，甚至到了要全民掏腰包來支付其不當得利還不肯罷休的地步。若不以如此霹靂的手段嚴懲，怎足以凸顯其間的荒謬和不公？再說，比起這些電廠多年來賺進的千億利潤，六十多億的罰金，不過是區區之數罷了。

如果說公平會的裁罰撒手?是「以戰逼和」之計，台電和民營電廠的關係走到這個地步，也到了重回談判桌的時候了。當年國際能源價格上漲，在民營電廠要求下，台電「善體人意」地同意修約提高燃料成本費率；孰料後來利息條件變化，台電要求調降資本費率，民營電廠卻一拖五、六年始終拒絕協商，彷彿忘了雙方的關係建立在「共生共榮」的基礎上。事實上，一向是國營事業金雞母的台電開始轉盈為虧，也就正發生在大量向民營電廠購電之際；一旦台電難以為繼，民營電廠還能憑不平等合約賣電給誰？

近年，台電內部瀰漫著一股失敗主義的氣息，得過且過，毫無鬥志。如今，靠著黃重球的積極和公平會的鐵腕，至少扳回一城。嚴格而論，這場勝利並不屬於台電，而是屬於全民；台電必須走完所有重新議約的程序，才有資格稱勝。至於那些仍然心存徼幸的電廠，最好意識到自己法理與人情雙輸的處境，不要再與全民為敵。

公平會的非常手段，逼出了民營電廠圖利不擇手段的原形。但人們更期待的，是政府能揪出當年下令簽下不平等合約的決策者，揪出民營電廠中那些為虎作倀的前台電幹部；那樣，台電這些年付出的龐巨代價，才算清理。