United States, 27481-27485 [2012-11125]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 77, Number 91 (Thursday, May 10, 2012)]
[Notices]
[Pages 27481-27485]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11125]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States v. Exelon Corporation, et al.; Public Comment and 
Response on Proposed Final Judgment

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the comment 
received on the proposed Final Judgment in United States v. Exelon 
Corporation, et al., Civil Action No. 1:11-CV-02276-EGS, which was 
filed in the United States District Court for the District of Columbia 
on April 26, 2012, together with the response of the United States to 
the comment.
    Copies of the comment and the response are available for inspection 
at the Department of Justice Antitrust Division, 450 Fifth Street NW., 
Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the 
Department of Justice's Web site at https://www.justice.gov/atr, and at 
the Office of the Clerk of the United States District Court for the 
District of Columbia, 333 Constitution Avenue NW., Washington, DC 
20001. Copies of any of these materials may be obtained upon request 
and payment of a copying fee.

Patricia A. Brink,
Director of Civil Enforcement.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

    UNITED STATES OF AMERICA Plaintiff, v. EXELON CORPORATION, and 
CONSTELLATION ENERGY GROUP, INC. Defendants. Case: 1:11-cv-02276.

RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENT ON THE PROPOSED 
FINAL JUDGMENT

    Pursuant to the requirements of the Antitrust Procedures and 
Penalties Act, 15 U.S.C. Sec.  16(b)-(h) (``APPA'' or ``Tunney Act''), 
plaintiff, the United States of America (``United States'') hereby 
files the public comment concerning the proposed Final Judgment in this 
case and the United States' response to that comment. After careful 
consideration of the comment submitted, the United States continues to 
believe that the proposed Final Judgment will provide an effective and 
appropriate remedy for the antitrust violation alleged in the 
Complaint. The United States will move the Court for entry of the 
proposed Final Judgment after the public comment and this response have 
been published in the Federal Register, pursuant to 15 U.S.C. Sec.  
16(d).

I. BACKGROUND

A. Procedural History

    On April 28, 2011, Defendant Exelon Corporation (``Exelon'') agreed 
to merge with Defendant Constellation Energy Group, Inc. 
(``Constellation''). Exelon and Constellation are two of the largest 
sellers of wholesale electricity in all or parts of Delaware, Illinois, 
Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, 
Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and the District 
of Columbia. Wholesale electricity is resold to customers by utilities 
and other organizations, generally for resale to end-use consumers.
    On December 21, 2011, the United States filed a civil antitrust 
Complaint alleging that the proposed merger of Exelon and Constellation 
would substantially lessen competition in the provision of wholesale 
electricity in parts of the Mid-Atlantic states in violation of Section 
7 of the Clayton Act, 15 U.S.C. Sec.  18, and result in higher 
wholesale electricity prices, raising retail electricity prices for 
residential, commercial, and industrial customers in these markets. 
Simultaneously with the filing of the Complaint, the United States 
filed the proposed Final Judgment and a Hold Separate Stipulation and 
Order (``Hold Separate Order'') signed by the United States and 
Defendants consenting to the entry of the proposed Final Judgment after 
compliance with the requirements of the APPA, 15 U.S.C. Sec.  16. The 
Court signed and entered the Hold Separate Order on December 30, 2011.
    Pursuant to the requirements of the APPA, the United States filed a 
Competitive Impact Statement (``CIS'') in this Court on December 21, 
2011; published the proposed Final Judgment and CIS in the Federal 
Register on December 28, 2011 (see 76 Fed. Reg. 81528); and arranged 
for the publication of a summary of the terms of the proposed Final 
Judgment, together with directions for the submission of written 
comments relating to the proposed Final Judgment, in The Washington 
Post for seven days beginning on December 26, 2011 and ending on 
January 2, 2012. The Defendants filed the statement required by 15 
U.S.C. Sec.  16(g) on January 3, 2012. The 60-day period for public 
comments ended on March 2, 2012; one comment was received as described 
in Section III below and is attached hereto.

B. The Complaint and Proposed Final Judgment

    The Complaint alleges that the combination of Exelon's and 
Constellation's generating units would enhance post-merger Exelon's 
ability and incentive to reduce output and raise wholesale electricity 
prices, likely resulting in increased retail electricity prices for 
customers in two regions, PJM Mid-Atlantic North and PJM Mid-Atlantic 
South, as defined in the Complaint and as discussed in detail in the 
CIS (at pp. 8-12). Absent the merger, Exelon and Constellation would 
compete against each other to sell electricity at wholesale. As 
explained in the CIS, the proposed merger would substantially lessen 
competition by combining the ownership or control of (a) low-cost 
baseload units that provide the incentive to raise prices with (b) 
higher-cost units that provide the ability to raise prices, and thus 
substantially increasing the likelihood that post-merger Exelon would 
find it profitable to withhold output and raise prices.
    The proposed Final Judgment would preserve the competition that 
would have been lost had the merger gone forward without divestitures. 
The remedy in the proposed Final Judgment resolves the alleged 
competitive effects by requiring defendants to divest three electric 
generating plants to a viable purchaser approved by the United States 
in its sole discretion. In addition, the proposed Final Judgment 
prohibits the merged company from reacquiring or controlling any of the 
divested assets. See CIS at pp. 12-15.

C. Review of Proposed Merger by Other Government Agencies

    In addition to a review under the antitrust laws by the United 
States Department of Justice, which led to the Complaint and proposed 
Final Judgment, the proposed merger required approvals from the Federal 
Energy Regulatory Commission, the Public Service Commissions of 
Maryland and New York, the Public Utility Commission of Texas, the 
Federal Communications Commission, and the

[[Page 27482]]

Nuclear Regulatory Commission. Exelon and Constellation sought and have 
received all of the required approvals.\1\ The parties completed their 
merger on March 12, 2012.
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    \1\ See Federal Energy Regulatory Commission, ``Order 
Conditionally Authorizing Merger and Disposition of Jurisdictional 
Facilities [in Docket Nos. EC11-83-000 and EC11-83-001],'' March 9, 
2012, available at www.ferc.gov/EventCalendar/Files/20120309175632-EC11-83-000a.pdf; Maryland Public Service Commission, ``Order No. 
84698 [in Case 9271],'' available at webapp.psc.state md.us/
Intranet/Casenum/CaseAction--new.cfm?CaseNumber=9271, Item 278; New 
York Public Service Commission, ``Sale of Upstate Nuclear Power 
Plants Approved -- Exelon Can Acquire Nine Mile, Ginna Power Plants 
from Constellation,'' available at www3.dps ny.gov/pscweb/WebFileRoom nsf/Web/6CC8C521EDC6A62F85257967005A45F6/$File/
pr11104.pdf?OpenElement; Public Utility Commission of Texas, ``Order 
[in Docket 39413],'' available at interchange.puc.state.tx.us/WebApp/Interchange/Documents/39413_11_703899.pdf; Federal 
Communications Commission, ``ULS Application 0004826990,'' available 
at wireless2 fcc.gov/UlsApp/ApplicationSearch/applMain.jsp?applID=6358842; Nuclear Regulatory Commission, ``NRC 
Approves Exelon-Constellation Merger, Indirect Transfer of Five 
Nuclear Power Plant Licenses,'' available at pbadupws.nrc.gov/docs/ML1204/ML120470203.pdf.
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    II. STANDARD OF REVIEW UNDER THE TUNNEY ACT
    As discussed in the CIS (at pp. 18-22), the Tunney Act calls for 
the Court, in making its public interest determination, to consider 
certain factors relating to the competitive impact of the proposed 
Final Judgment and whether it adequately remedies the harm alleged in 
the complaint. See 15 U.S.C. Sec.  16(e)(1)(A) & (B) (listing factors 
to be considered).
    This public interest inquiry is necessarily a limited one as the 
United States is entitled to deference in crafting its antitrust 
settlements. See generally United States v. SBC Commc'ns, 489 F. Supp. 
2d 1 (D.D.C. 2007); see also United States v. Microsoft Corp., 56 F.3d 
1448, 1458-62 (DC Cir. 1995); Massachusetts v. Microsoft Corp., 373 
F.3d 1199, 1236 (DC Cir. 2004) (A ``district court's 'public interest' 
inquiry into the merits of the consent decree is a narrow one.'').
    With respect to the scope of the complaint, the Tunney Act review 
does not provide for an examination of possible competitive harms the 
United States did not allege. See, e.g., Microsoft, 56 F.3d at 1459 
(holding that it is improper to reach beyond the complaint to evaluate 
claims that the government did not make); SBC Commc'ns, 489 F. Supp. 2d 
at 12.
    With respect to the sufficiency of the proposed remedy, the United 
States is entitled to deference as to its views of the nature of the 
case, its perception of the market structure, and its predictions as to 
the effect of proposed remedies. See, e.g., SBC Commc'ns, 489 F. Supp. 
2d at 17 (holding that the United States is entitled to deference as to 
predictions about the efficacy of its remedies); United States v. 
KeySpan, 763 F. Supp. 2d 633, 642 (S.D.N.Y. 2011). Under this standard, 
the United States need not show that a settlement will perfectly remedy 
the alleged antitrust harm; rather, it need only provide a factual 
basis for concluding that the settlement is a reasonably adequate 
remedy for the alleged harm. SBC Commc'ns, 489 F. Supp. 2d at 17. A 
court should not reject the United States' proposed remedies merely 
because other remedies may be preferable. KeySpan, 763 F. Supp. 2d at 
637-38.

III. SUMMARY OF PUBLIC COMMENT AND THE UNITED STATES' RESPONSE

    During the sixty-day comment period, the United States received one 
public comment, authored by Dr. Charles L. Rogers, which is attached 
hereto. As explained below, after careful review, the United States 
continues to believe that the proposed Final Judgment is in the public 
interest.

A. Summary of the Public Comment

    Dr. Rogers raises a concern that the three generating units to be 
divested under the proposed Final Judgment are not sufficient to 
address the potential negative impact of the merger.\2\ Dr. Rogers 
states his belief that the plants to be divested are ``three old dirty 
generating plants.'' \3\ Thus, Dr. Rogers's comment reflects concerns 
about the type of units being divested and the sufficiency of the 
divestiture.\4\
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    \2\ Comment at 1-2.
    \3\ Comment at 2.
    \4\ Dr. Rogers also raises other concerns that do not relate to 
the settlement or allegations raised in the Complaint. See e.g., 
Comment at 1-2 (raising concerns about topics such as access to 
natural gas services on the distal peninsula of Anne Arundel county, 
the reliability of the utility grid, and the ability of the state 
public service commissions to oversee the behavior of utilities that 
do business in more than one state). These concerns are beyond the 
scope of the Complaint and therefore outside Tunney Act review. As 
noted above, other state and federal agencies conducted independent 
reviews of the merger to address public interest and other factors 
as appropriate. In addition, Dr. Rogers expresses his concern with 
the content and tone of two emails that were inadvertently sent to 
him by Antitrust Division attorneys in response to one of his 
emails. Upon realizing what had occurred, a Division attorney 
contacted Dr. Rogers to apologize, and all Division managers and 
staff have been reminded to exercise caution and professionalism in 
the use of email communications.
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B. Response to Comment

    The remedy called for in the proposed Final Judgment is an 
effective one given the facts and circumstances of this matter. As 
explained in the CIS, the primary competitive issue presented by 
Exelon's merger with Constellation is the potential that the combined 
portfolio of the merged firm would substantially increase the 
likelihood that the merged firm would find it profitable to withhold 
output and raise price. The cost of operating a generating unit varies 
depending on the cost of fuel for the unit and the efficiency of the 
unit's technology in transforming the energy in fuel into electricity. 
Baseload units, such as nuclear and efficient coal-fired steam, 
typically generate electricity around the clock during most of the year 
at relatively low cost. These low-cost units, which run frequently, 
benefit from an increase in wholesale electricity prices and thus act 
as an incentive for a firm to attempt to raise prices. Higher-cost 
units that run somewhat less frequently, such as the ones to be 
divested, provide the ability to withhold output to increase market-
clearing prices; and because their costs are closer to the market-
clearing price than lower-cost units, the lost profit on the withheld 
output, and therefore the cost of withholding output from these units, 
is less than it would be for lower-cost units. Here, by giving post-
merger Exelon an increased amount of relatively lower-cost capacity, 
combined with an increased share of higher-cost capacity, the merger 
substantially increases the likelihood that Exelon would find it 
profitable to withhold output and raise price by giving Exelon both 
additional incentive and additional ability to reduce output and raise 
market prices.
    The divestiture will essentially remove from the firm's combined 
portfolio all of the higher-cost units, other than those already being 
retired by Exelon, that are well suited to being systematically 
withheld as part of an effort to exercise market power. The merged firm 
will be left with only low-cost nuclear ``baseload'' units that run 
almost constantly and natural gas-fired ``peaking'' units that run 
rarely. By depriving the merged firm of key assets that would have made 
it profitable for it to withhold output and raise prices, the proposed 
Final Judgment seeks to restore effective competition and assure that 
the merger is not likely to lead to consumer harm.

VI. CONCLUSION

    After careful consideration of the public comment, the United 
States has determined that the proposed Final Judgment, as drafted, 
provides an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint and is therefore in the public

[[Page 27483]]

interest. The United States will move this Court to enter the proposed 
Final Judgment after the comment and this response are published in the 
Federal Register.

    Dated: April 26, 2012.

Respectfully submitted,

/s/--------------------------------------------------------------------

Tracy Fisher,

Attorney, Transportation, Energy and Agriculture Section, Antitrust 
Division, U.S. Department of Justice, 450 Fifth Street NW., Suite 
8000, Washington DC 20530.

Telephone: (202) 616-1650.
Facsimile: (202) 307-2784.
Email: tracy.fisher@usdoj.gov.

CERTIFICATE OF SERVICE

    I hereby certify that on April 26, 2012, I caused the Response of 
Plaintiff United States to Public Comment on the Proposed Final 
Judgment and attached exhibit to be electronically filed with the Clerk 
of the Court using the CM/ECF system, which will provide electronic 
notice to the following counsel.

Counsel for Defendant Exelon Corporation, Steven C. Sunshine (DC Bar 
450078), John H. Lyons (DC Bar  453191), Skadden, 
Arps, Slate, Meagher & Flom LLP & Affiliates, 1440 New York Ave. NW., 
Washington, DC 20005-2111, Tel: (202) 371-7860, Fax: (202) 661-0560.
Counsel for Defendant Constellation Energy Group, Inc., Bilal Sayyed 
(DC Bar 977975), Kirkland & Ellis LLP, 655 15th Street NW., 
Washington, DC 20005, Tel: (202) 879-5192, Fax: (202) 654-9629.

Respectfully Submitted,

/s/--------------------------------------------------------------------

Tracy Fisher,

Attorney, Transportation, Energy and Agriculture Section, Antitrust 
Division, U.S. Department of Justice, 450 Fifth Street NW., Suite 
8000, Washington, DC 20530.

Telephone: (202) 616-1650
Facsimile: (202) 307-2784
Email: tracy.fisher@usdoj.gov.

William H. Stallings,
Chief, Transportation, Energy & Agriculture Section, Antitrust 
Division, United States Department of Justice, 450 Fifth Street NW., 
Suite 8000, Washington, DC 20001.

    Dear Mr. Stallings,
    Thank you for your generous offer Actually, I had given up hope of 
having any impact, based on the stonewall I have encountered at the 
USDOJ other than Ms. Tracy Fisher Time is our most important resource 
and as I get older I have less and less interest in beating my head 
against a bureaucracy that appears impregnable, wasting time of which 
all of us have a limited amount on this earth I will send this letter 
by snail mail in addition to electronically I have written myself 
silly, literally dozens of emails with hard economic reasoning 
comparing competitors to these merger applicants listed below regarding 
the economic and potentially negative impact that the creation of an 
electrical and natural gas utility can have should an untoward economic 
event occur taking down a $37 Nihon market capitalization behemoth, 
both merger partners of which carry corporate bond ratings of BBB or 
BBB- Just one notch above ``junk bond'' status With the sole exception 
of Ms. Tracy Fisher, my email communication with the USDOJ have been 
met with total silence by Ms. Sharis Pozen and abusive and snarky 
insults by Angela Hughes as well as Ms. Janet Urban, such that I have 
lost respect of or hope that the USDOJ gives a damn about the citizens 
of this country.
    Additionally, BCE has been so irresponsible that there are several 
public schools in Anne Arundel County which have no access to natural 
gas for heating forcing the county to heat the schools with fuel oil 
not to mention thousands of residents. Does anyone believe a $37 
billion corporation gives a flying flip about building out a natural 
gas distribution system or that the citizens of Anne Arundel County 
will have any impact on the corporate bureaucracy of such a huge 
utility that stretches across 1/3rd of the country? If they do, I have 
a bridge for sale in New York City, inexpensively!
    We desperately need access to natural gas on all the distal 
peninsula's of Anne Arundel County, but I see this merger as the 
deathnell of that possibility, despite having started an electronic 
petition seeking natural gas infrastructure here to present to my State 
Senator John Astle with whom I last spoke in December. He agreed with 
me in his own words that energy deregulation ``does not work'' It 
caused the greatest white collar crime wave in history in the form of 
Enron, and now threatens to make a mega-merger like Constellation 
Energy and Exelon a government unto itself, making the rules itself, 
and playing by them. I should know, because BCE burned down my house in 
February 1994, then lied about it for three years, while they mitigated 
their costs by 10%/yr in a high interest rate environment When I proved 
their liability they finally settled out of court, minus the 30% I lost 
to inflation and the 33% the lawyers received Even the insurance 
company received subrogation compensation, while I was left with trying 
to rebuild the house in the Critical Areas requiring three variances, 
being treated arrogantly by the judge that I dare ask for a building 
permit to rebuild the house.
    To say that I am outraged at the irresponsibility of the entire 
state and Federal government's USDOJ arrogance and impotence is without 
question. Were this type of treatment be meted out to someone fortunate 
enough to be represented by the ACLU over a civil rights issue, I have 
little doubt that there would be a substantially less abusive behavior 
of all mentioned and a more constructive outcome, but I had to fight 
these battles alone.
    There are thousands of citizens living within an hour's drive of 
the Capital building living like they are in the 19th century, heating 
their houses with wood. Some of them are approaching 90 or more, with 
no access to natural gas Now with this merger, which the Exelon 
executives bought the USDOJ anti-trust's division blessing by palming 
off three old generating plants consisting of about 70% coal, 20% oil 
and 10% natural gas generation relieving themselves of major costs to 
upgrade or replace dirty old generating plants, even less hope of ever 
being able to convince a mega corporation that access to gas is 
critical Once again the USDOJ was suckered and they bought it hook, 
line, and sinker We also live with a 19th century electrical grid which 
fails routinely, courtesy of Constellation Energy Residents of 
Columbia, MD laugh at Anne Arundel County when the power is out. They 
almost never have power outages because their utilities are 
underground. I lived in rural Fairfax county with underground utilities 
for 30 years and can remember only a handful of power outages, none 
lasting more than 6-8 hours In the winter this is potentially a life 
saving situation. Constellation Energy appears to care more about the 
$36,000,000 its executives will collect for this merger than the 
customers it serves, a true oxymoron.
    As a secretary of the local Catholic church said this afternoon, 
the government has us exactly where they want us, working like dogs 
without the time or resources to protect ourselves from the Wall 
Street-Constellation crowd who will reap another $36,000,000 from this 
merger after throwing away nearly $112 billion on the 2008 default by 
BGE to be bought by Mid American Energy (see Edgar filing of Mid 
American Energy 9/23/2008), or protect ourselves from our own 
government.
    https://wwwsecgov/Archives/edgar/data/1081316/000095012308011286/
y00178e8vk--htm.

[[Page 27484]]

    Mid American Energy is a regulated electrical energy company 
serving (in the most complete sense), unlike Constellation, 2 4 million 
of its customers over Iowa, Wyoming, and parts of Utah, a geographical 
area many times that of Constellation for a total cost of $0 0635/KVVH 
and hasn't raise its rates since 1999 Additionally it has been able to 
generate $5.4 billion to invest in 2,909 megawatts of wind power. BGE 
charges $0 13-14/KWH and Exelon charges PECO customers in Philadelphia 
$0 017/KWH, fully more than twice Mid American's charges In fact Mid 
American Energy Is selling power into Commonwealth Edison Energy' s 
market in Chicago $0 0635/KWH (originally part of the Exelon merger 
with PECO in 2004) as reported on the Maryland Public Service Web site
    How can the USDOJ allow itself to be bought off by Exelon dumping 
three old dirty generating plants thereby relieving itself of massive 
costs to comply with EPA requirements and roll over by this magical 
madness'? The anti-trust division of the USDOJ has failed miserably to 
do its job, while allowing a massive multi-state energy merger, which 
degrades each state Public Service Commission's ability to prevent 
abuse of the customers This is the very definition of restraint of 
trade and abuse of government sanctioned franchise power
    Ida Tarbell was right Vituperation is not the way to fight 
monopolistic power, for the public will soon tire of such nonsense, but 
the bald facts of abuse of power speak for themselves in the form of 
Exelon's and Constellation Energy's price structure compared with 
MidAmerican Energy
    When people are abused by their governments, they frequently vote 
with their feet, as happened in the middle of the last century from 
1947 to 1960 when as Churchill famously said, ``From Stettin on the 
Baltic, to Trieste on the Adriatic an iron curtain descended across 
Europe enslaving Eastern Europe and all of Soviet Asia'' But the 
Soviets left an escape hatch, West Berlin. The flood of those who left 
everything behind and walked into freedom became such a Tsunami that 
the East German Government built a wall around West Berlin, then 
started shooting people who tried to climb over the wall, and then the 
most determined to get out tunneled underneath the wall. It took thirty 
years and a determined group of church and political leaders, Pope John 
Paul II, Ronald Reagan, and Margaret Thatcher to bring down that wall 
and allow freedom from economic and political slavery to end. No wall 
can be built around Maryland or the USA to keep people inside
    I hope the above is a cogent argument why such mega mergers of 
giant electrical and gas utilities are inherently anticompetitive, and 
reduce the power of individual state Public Service Commissions, 
because the utilities have a choke hold on the delivery of BOTH 
electrical and natural gas energy The argument should be sell evident 
to the most casual observer, but then I have little faith, based of 
previous experience that the USDOJ is interested in anything more than 
``snarky'' insulting email messages and Ms. Sharis Pozen simply ignores 
the citizenry I believe that the courts are more interested in 
themselves than improving the lives of the citizens, and I am not the 
only person I know who is so cynical. This letter cannot be mailed 
until Friday 3/9 so it may well be as impotent as other opposition to 
this travesty which appears simply yet a second example of legalized 
extortion of the ratepayers of Constellation Energy since 2008
    I would expect such a decision by a Republican USDOJ on 
philosophical grounds, but for a Democratic USDOJ to make such a 
foolish and boneheaded blunder is beyond comprehension If this sounds 
like I'm angry you are absolutely correct. The generalized disgust and 
cynicism about the government both local and Federal among those with 
whom I have talked (and there are many) is so palpable one could cut it 
with a knife This is what the ``Occupy Wall Street Protest movement is 
all about Just wait until Michael Bloomberg brings out the mounted 
police to clear out the park in Manhattan His political career will be 
toast just like Gray Davis in California for failure to control Enron 
The USDOJ is failing just like Davis did
    In my case, at the risk of sounding extreme (Barry Goldwater 
thought extremism in the defense of liberty was no vice, but what is 
forgotten is that he followed up that incendiary comment with the 
following statement And let me remind you also, that moderation in the 
pursuit of justice is no virtue!)
    I know I have ventured far afield from a legal brief opposing the 
Exelon Constellation Energy merger, but it that is what it takes to 
make people wake up and smell the coffee I will do it again, and again, 
and again until some order is brought out of chaos, and sanity is 
created from madness, if something constructive and reasonable does not 
occur here in Maryland, I plan to sell all real estate, and leave 
Maryland, possibly the USA Costa Rica and/or New Zealand are looking 
better and better all the time
    All the best,
Charles L. Rogers, MD

PS

    Below are the juvenile and insulting comments by Ms Hughes and Ms. 
Urban when I praised Ms Fisher for her decency and integrity, providing 
me with Information how to engage this process I hope you are as proud 
of them as they seem to be of themselves

From ``Hughes, Angela''
Date: Feb 15, 2012 12.59 54 p.m.
Subject RE RE: Exelon-Constellation
To

Okay now his emails to you are getting creepy.
    From:
Sent: Wednesday, February 15, 2012 12:55 p.m. To: Fisher, Tracy;
Subject: Re: RE: Exelon-Constellation

    Dear Ms. Fisher,
    I hope you will accept this thought in the sense it is offered. You 
are truly a beautiful person I will augment and edit the last letter I 
wrote to you and submit it via certified mail return receipt I will 
also notify Ron Herzfeld at the Maryland Office of Public Counsel 
should he not be aware of this opportunity He has consistently 
exhibited unimpeachable integrity over this issue and should be given 
the opportunity to participate, should he find his thoughts pertinent.

Urban, Janet/Janet Urban@usdoj gov/Add to Contacts
Wednesday, Feb 15 02 02 p.m./Hide Details/View source

reply-to Janet.Urban@usdoj.gov

 to

RE RE. Exelon-Constellation

Sheesh, he really thinks he's your BFF

From:
Sent: Wednesday, February 15, 2012 12:55 p.m. To: Fisher, Tracy;
Subject: Re: RE: Exelon-Constellation

    Dear Ms Fisher,

    I hope you will accept this thought in the sense it is offered. You 
are truly a beautiful person. I will augment and edit the last letter I 
wrote to you and submit it via certified mall return receipt I will 
also notify Ron Herzfeld at the Maryland Office of Public Counsel 
should he not be aware of this opportunity He has consistently 
exhibited unimpeachable integrity over this issue and should be given 
the opportunity to participate, should he find his thoughts pertinent.

    With kindest and best regards,

Charles L Rogers, MD

    On 03/08/12, Stallings, William wrote

    Dr. Rogers,

    Under the Tunney Act, we must publish formal comments on the

[[Page 27485]]

proposed Exelon-Constellation settlement and the Department's response 
to the comments in the Federal Register and submit copies of them to 
the court. In your email to Tracy Fisher of February 15, 2012, you 
indicated that you intended to send a letter offering formal comments 
on the merger via certified mail. To date, we have not received such a 
letter from you. If you sent a letter or intend to do so, please let me 
know. As you know, the statutory deadline to file comments was last 
Friday, March 2, 2012, but we would be willing to accept your comments 
if you send them this week.
    Thank you for your interest in this matter.

[FR Doc. 2012-11125 Filed 5-9-12; 8:45 am]
BILLING CODE 4410-11-M