(B) Movement of employees to a competitive affiliate may be
accomplished either through the employee's termination of employment with
the TDBU and acceptance of employment with the CS or through a transfer to
the CD as long as the transfer results in the TDBU bearing no ongoing costs
associated with that employee.
(C) Transferring employees shall sign a statement indicating
that they are aware of and understand the restrictions set forth in this section.
The TDBU also shall post a conspicuous notice of such a transfer on its Internet
site or other public electronic bulletin board within 24 hours and for at
least 30 consecutive calendar days.
(D) Employees may be temporarily assigned to an affiliate or
non-affiliated TDBU to assist in restoring power in the event of a major service
interruption or to assist in resolving emergency situations affecting system
reliability. Any such deviation shall be reported and posted on the TDBU's
Internet site or other public electronic bulletin board within 24 hours and
for at least 30 consecutive calendar days.
(3) Sharing of office space. A TDBU's office space shall be
physically separate from the office space of its competitive affiliates. Physical
separation is accomplished by having office space in separate buildings or,
if within the same building, by a method such as having offices on separate
floors or with separate access.
(4) Separate books and records. A TDBU shall maintain separate
books of accounts and records from those of any CS. In a proceeding under
subsection (n)(3) of this section, the commission may review records relating
to a transaction between a TDBU and a CS. Costs of CDs, other than those costs
related to corporate support services, shall be segregated by account.
(A) In accordance with generally accepted accounting principles,
a TDBU shall record all transactions with its CS whether they involve direct
or indirect expenses, and all transactions with CDs that relate to the transmission
and distribution function.
(B) A TDBU shall prepare financial statements that are not
consolidated with those of a CS.
(5) Limitations on credit support by a TDBU for a competitive
affiliate. A TDBU and its affiliates may share credit, investment, or financing
arrangements with a competitive affiliate if the TDBU implements adequate
safeguards precluding employees of a competitive affiliate from gaining access
to information in a manner that would allow or provide a means to transfer
confidential information from the TDBU to the competitive affiliate or lead
to customer confusion. Nothing in this section shall impair existing contracts,
covenants, or obligations between an MOU/COOP and its lenders and holders
of bonds issued on behalf of or by an MOU/COOP.
(A) MOU. In issuing debt related to competitive affiliates,
an MOU shall be governed by and maintained, operated, and managed in accordance
with the laws of the State of Texas, including the ordinances and resolutions
authorizing the issuance of any form of indebtedness and the provisions thereof,
which require that funds reasonably necessary for operation and maintenance
expenses (including TDBU operation and maintenance expenses) have priority
in any pledge of gross revenues of the municipally owned utility system.
(B) COOP. A COOP TDBU shall not allow a competitive affiliate
to obtain credit under any arrangement that would include a specific pledge
of assets reasonably necessary for TDBU operations or a pledge of gross revenues
of the TDBU.
(j) Transactions between a TDBU and its competitive affiliates.
(1) Transactions with competitive affiliates. Except for transfers
implementing unbundling, transfers of property pursuant to a rate order having
the effect of a financing order, credit support, and corporate support services
provided by a TDBU to its competitive affiliate, any transaction between a
TDBU and its competitive affiliate shall be accomplished at pricing levels
that are fair and reasonable to the customers of the TDBU and that reflect
the approximate market value of the assets or the fully allocated cost of
the assets, services, or products, and that do not include any preferential
discounts, rebates, fee waivers or alternative tariff terms and conditions.
Such transfers include, but are not limited to, the following:
(A) sale or provision of products or services by a TDBU to
its competitive affiliate;
(B) purchase or acquisition of products, services, or assets
by a TDBU from a competitive affiliate; or
(C) assets transferred from a TDBU to a competitive affiliate.
(2) Records of transactions. Each transaction between a TDBU
and its competitive affiliates, other than those involving corporate support
services or transactions governed by tariffs of general applicability filed
at the commission or approved by the TDBU's governing body, shall be reflected
in a contemporaneous written record of the transaction including the date
of the transaction, name of the competitive affiliate, name of a TDBU employee
knowledgeable about the transaction, and description of the transaction. Such
records shall be maintained for three years.
(3) Provision of corporate support services. A TDBU may engage
in transactions directly related to the provision of corporate support services
with its competitive affiliate. Such transactions shall be carried out in
such a way as to not allow or provide the means for the transfer of confidential
information from the TDBU to the competitive affiliate, the opportunity for
preferential treatment or unfair competitive advantage, customer confusion,
or significant opportunities for cross-subsidization of the competitive affiliate.
(k) Safeguards relating to provision of products and services.
(1) Tying arrangements prohibited. A TDBU shall not condition
the provision of any product, service, pricing benefit, or alternative terms
or conditions upon the purchase of any other good or service from the TDBU
or its competitive affiliate.
(2) Products and services available on a non-discriminatory
basis. Any product or service, other than corporate support services or credit
arrangements, made available by a TDBU to its competitive affiliate shall
be made available to all similarly situated entities at the same price and
on the same basis and manner that the product or service was made available
to the competitive affiliate, provided however, that such provision does not
violate PURA §40.104 or §41.104, or the Texas Constitution, Article
III, section 52. Any service required to be provided in compliance with PURA §39.203
shall be provided in a non-discriminatory manner and in accordance with the
tariffs developed pursuant to any commission rule implementing that section.
(l) Information safeguards.
(1) Proprietary customer information. Upon request by the customer,
a TDBU shall provide a customer with the customer's proprietary customer information.
Unless a TDBU obtains prior affirmative written consent or other verifiable
authorization from the customer as determined by the commission, or unless
otherwise permitted under this subsection, it shall not release any proprietary
customer information to a competitive affiliate or to any other entity, other
than the customer, an independent organization as defined by PURA §39.151,
or a provider of corporate support services for the sole purpose of providing
corporate support services in accordance with subsection (j)(3) of this section.
The TDBU shall maintain records that include the date, time, and nature of
information released when it releases customer proprietary information to
another entity in accordance with this paragraph. The TDBU shall maintain
records of such information for a minimum of three years and shall make the
records available for third party review within three business days of a written
request or at a time mutually agreeable to the TDBU and the third party. When
the third party requesting review of the records is not the customer, commission,
or Office of Public Utility Counsel, the records may be redacted in such a
way as to protect the customer's identity. If proprietary customer information
is released to an independent organization or a provider of corporate support
services, the independent organization or entity providing corporate support
services is subject to the rules in this subsection with respect to releasing
the information to other persons.
(A) Exception for law, regulation, or legal process. A TDBU
may release proprietary customer information to another entity without customer
authorization where authorized or requested to do so by the commission or
by law, regulation, or legal process. Nothing in this rule requires disclosure
of information that may be withheld from disclosure under Texas Government
Code, Chapter 552.
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