IF CONGRESS SHOULD CONSIDER LEGISLATION TO MANDATE retail wheeling - and even with a date certain - those states that have already opened their markets will still likely ask for reciprocity to guarantee that any competitor seeking entry will welcome competition in its own home territory. Why? Some states are moving more quickly than others. Second, others have indicated they do not intend to open at all.
Arguably, state lawmakers could enact a reciprocal covenant on their own. %n1%n Litigation would be certain to follow, however, so that the risk of losing such a suit undoubtedly would sway a state to ask Congress to install a reciprocity provision in federal legislation. %n2%n
Nevertheless, Congress must proceed cautiously. If it decides to add reciprocity guarantees to wheeling legislation, then Congress should achieve reciprocity through a system of self-certification. Each state would certify whether its own markets are open. This method of achieving reciprocity should be preferred over a checklist approach, as was employed by the Telecommunications Act of 1996. The checklist method could well prove problematic, since it could require one state to review the policy decisions of another.
A system of self-certification would provide states with flexibility while ensuring that states maintain the ability to make independent policy decisions.
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