(h) Safeguards relating to joint marketing and advertising.
(1) Joint marketing, advertising, and promotional activities.
(A) A utility shall not:
(i) provide or acquire leads on behalf of its competitive
affiliates;
(ii) solicit business or acquire information on behalf
of any of its competitive affiliates;
(iii) give the appearance of speaking or acting on
behalf of any of its competitive affiliates;
(iv) share market analysis reports or other proprietary
or non-publicly available reports, with its competitive affiliates;
(v) represent to customers or potential customers that
it can offer competitive retail services bundled with its tariffed
services; or
(vi) request authorization from its customers to pass
on information exclusively to its competitive affiliate.
(B) A utility shall not engage in joint marketing,
advertising, or promotional activities of its products or services
with those of a competitive affiliate in a manner that favors the
affiliate. Such joint marketing, advertising, or promotional activities
include, but are not limited to, the following activities:
(i) acting or appearing to act on behalf of a competitive
affiliate in any communications and contacts with any existing or
potential customers;
(ii) joint sales calls;
(iii) joint proposals, either as requests for proposals
or responses to requests for proposals:
(iv) joint promotional communications or correspondence,
except that a utility may allow a competitive affiliate access to
customer bill advertising inserts according to the terms of a commission-approved
tariff so long as access to such inserts is made available on the
same terms and conditions to non-affiliates offering similar services
as the competitive affiliate that uses bill inserts;
(v) joint presentation at trade shows, conferences,
or other marketing events within the State of Texas; and
(vi) providing links between any of a utility's websites
and social media platforms, and any of the websites and social media
platforms of its competitive affiliates.
(C) At a customer's unsolicited request, a utility
may participate in meetings with a competitive affiliate to discuss
technical or operational subjects regarding the utility's provision
of transmission or distribution services to the customer, but only
in the same manner and to the same extent the utility participates
in such meetings with unaffiliated electric or energy services suppliers
and their customers. The utility shall not listen to, view, or otherwise
participate in any way in a sales discussion between a customer and
a competitive affiliate or an unaffiliated electric or energy services
supplier.
(2) Requests for specific competitive affiliate information.
If a customer or potential customer makes an unsolicited request to
a utility for information specifically about any of its competitive
affiliates, the utility may refer the customer or potential customer
to the competitive affiliate for more information. Under this paragraph,
the only information that a utility may provide to the customer or
potential customer is the competitive affiliate's address and telephone
number. The utility shall not transfer the customer directly to the
competitive affiliate's customer service office via telephone or provide
any other electronic link whereby the customer could contact the competitive
affiliate through the utility. When providing the customer or potential
customer information about the competitive affiliate, the utility
shall not promote its competitive affiliate's products or services,
nor shall it offer the customer or potential customer any opinion
regarding the service of the competitive affiliate or any other service
provider.
(3) Requests for general information about products
or services offered by competitive affiliates and their competitors.
If a customer or potential customer request general information from
a utility about products or services provided by its competitive affiliate
or its affiliate's competitors, the utility shall not promote its
competitive affiliate or its affiliate's products or services, nor
shall the utility offer the customer or potential customer any opinion
regarding the service of the competitive affiliate or any other service
provider. The utility may direct the customer or potential customer
to a telephone directory or to the commission, or provide the customer
with a recent list of suppliers developed and maintained by the commission,
but the utility may not refer the customer or potential customer to
the competitive affiliate except as provided for in paragraph (2)
of this subsection.
(i) Remedies and enforcement.
(1) Internal codes of conduct for the transition period.
During the transition to competition, including the period prior to
and during utility unbundling pursuant to PURA §39.051, each
utility shall implement an internal code of conduct consistent with
the spirit and intent of PURA §39.157(d) and with the provisions
of this section. Such internal codes of conduct are subject to commission
review and approval in the context of a utility's unbundling plan
submitted pursuant to PURA §39.051(e); however, such internal
codes of conduct shall take effect, on an interim basis, on January
10, 2000. The internal codes of conduct shall be developed in good
faith by the utility based on the extent to which its affiliate relationships
are known by January 10, 2000, and then updated as necessary to ensure
compliance with PURA and commission rules. A utility exempt from PURA
Chapter 39 pursuant to PURA §39.102(c) shall adopt an internal
code of conduct that is consistent with its continued provision of
bundled utility service during the period of its exemption.
(2) Ensuring compliance for new affiliates. A utility
and a new affiliate are bound by the code of conduct immediately upon
creation of the new affiliate. Upon the creation of a new affiliate,
the utility shall immediately post a conspicuous notice of the new
affiliate on its Internet site or other public electronic bulletin
board for at least 30 consecutive calendar days. Within 30 days of
creation of the new affiliate, the utility shall file an update to
its internal code of conduct and compliance plan, including all changes
due to the addition of the new affiliate. The utility shall ensure
that any interaction with the new affiliate is in compliance with
this section.
(3) Compliance Audits. No later than one year after
the utility has unbundled pursuant to PURA §39.051, or acquires
a competitive affiliate, and, at a minimum, every third year thereafter,
the utility shall have an audit prepared by independent auditors that
verifies that the utility is in compliance with this section. For
a utility that has no competitive affiliates, the audit may consist
solely of an affidavit stating that the utility has no competitive
affiliates. The utility shall file the results of each said audit
with the commission within one month of the audit's completion. The
cost of the audits shall not be charged to utility ratepayers.
(4) Informal complaint procedure. A utility shall establish
and file with the commission a complaint procedure for addressing
alleged violations of this section. This procedure shall contain a
mechanism whereby all complaints shall be placed in writing and shall
be referred to a designated officer of the utility. All complaints
shall contain the name of the complainant and a detailed factual report
of the complaint, including all relevant dates, companies involved,
employees involved, and the specific claim. The designated officer
shall acknowledge receipt of the complaint in writing within five
working days of receipt. The designated officer shall provide a written
report communicating the results of the preliminary investigation
to the complainant within thirty days after receipt of the complaint,
including a description of any course of action that will be taken.
In the event the utility and the complainant are unable to resolve
the complaint, the complainant may file a formal complaint with the
commission. The utility shall notify the complainant of his or her
right to file a formal complaint with the commission, and shall provide
the complainant with the commission's address and telephone number.
The utility and the complainant shall make a good faith effort to
resolve the complaint on an informal basis as promptly as practicable.
The informal complaint process shall not be a prerequisite for filing
a formal complaint with the commission, and the commission may, at
any time, institute a complaint against a utility on its own motion.
(5) Enforcement by the commission. A violation or series
or set of violations of this section that materially impairs, or is
reasonably likely to materially impair, the ability of a person to
compete in a competitive market shall be deemed an abuse of market
power.
(A) In addition to other methods that may be available,
the commission may enforce the provisions of this rule by:
(i) seeking an injunction or civil penalties to eliminate
or remedy the violation or series or set of violations;
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