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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;
(ii) suspending, revoking, or amending a certificate
or registration as authorized by PURA §39.356; or
(iii) pursuing administrative penalties under PURA,
Chapter 15, Subchapter B.
(B) The imposition of one penalty under this section
does not preclude the imposition of other penalties as appropriate
for the violation or series or set of violations.
(C) In assessing penalties, the commission shall consider
the following factors:
(i) the utility's prior history of violations;
(ii) the utility's efforts to comply with the commission's
rules, including the extent to which the utility has adequately and
physically separated its office, communications, accounting systems,
information systems, lines of authority, and operations from its affiliates,
and efforts to enforce these rules;
(iii) the nature and degree of economic benefit gained
by the utility's competitive affiliate;
(iv) the damages or potential damages resulting from
the violation or series or set of violations;
(v) the size of the business of the competitive affiliate
involved;
(vi) the penalty's likely deterrence of future violations;
and
(vii) such other factors deemed appropriate and material
to the particular circumstances of the violation or series or set
of violations.
(6) No immunity from antitrust enforcement. Nothing
in these affiliate rules shall confer immunity from state or federal
antitrust laws. Sanctions imposed by the commission for violations
of this rule do not affect or preempt antitrust liability, but rather
are in addition to any antitrust liability that may apply to the anti-competitive
activity. Therefore, antitrust remedies also may be sought in federal
or state court to cure anti-competitive activities.
(7) No immunity from civil relief. Nothing in these
affiliate rules shall preclude any form of civil relief that may be
available under federal or state law, including, but not limited to,
filing a complaint with the commission consistent with this subsection.
(8) Preemption. This rule supersedes any procedures
or protocols adopted by an independent organization as defined by
PURA §39.151, or similar entity, that conflict with the provisions
of this rule.
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