| (C) If relying upon a third-party provider for commodity
risk management services to satisfy the requirement for paragraph
(1)(B) of this subsection, a copy of the executed contract is required.
(D) Any complaint history, disciplinary record and
compliance record during the ten years immediately preceding the filing
of the application regarding the applicant, the applicant's corporate
parents, all sister companies and subsidiaries of the applicant, and
affiliates of the foregoing that provide utility-like services such
as telecommunications, internet, broadband, electric, gas, water,
or cable service; the applicant's principals; and any person that
merged with any of the preceding persons.
(i) The complaint history, disciplinary record, and
compliance record must include information from any federal agency
including the U.S. Securities and Exchange Commission and the U.S.
Commodity Futures Trading Commission; any self-regulatory organization
relating to the sales of securities, financial instruments, physical
or financial transactions in commodities, or other financial transactions;
state public utility commissions, state attorney general offices,
or other regulatory agencies in states where the applicant is doing
business or has conducted business in the past including state securities
boards or commissions, the Texas Secretary of State, Texas Comptroller's
Office, and Office of the Texas Attorney General. Relevant information
must include the type of complaint, status of complaint, resolution
of complaint, and the number of customers in each state where complaints
occurred.
(ii) The applicant may request to limit the inclusion
of this information if it would be unduly burdensome to provide, so
long as the information provided is adequate for the commission to
assess the applicant's and the complaint history of the applicant's
principals and affiliates, disciplinary record, and compliance record.
(iii) Any complaint information on file at the commission
may also be considered when reviewing the application.
(E) The following statements must be supported by a
signed notarized affidavit made by an executive officer of the applicant.
(i) A statement indicating whether the applicant or
the applicant's principals are currently under investigation or have
been penalized by an attorney general or any state or federal regulatory
agency for violation of any deceptive trade or consumer protection
laws or regulations.
(ii) A statement that identifies whether the applicant
or applicant's principals have been convicted or found liable for
fraud, theft, larceny, deceit, or violations of any securities laws,
customer protection laws, or deceptive trade laws in any state.
(iii) A statement that the applicant will register
with or be certified by the applicable independent organization and
that the applicant will comply with the technical and managerial requirements
of this subsection; and that third-party providers with whom the applicant
has a contractual relationship are registered with or certified by
the independent organization, as appropriate, and will comply with
all system rules and protocols established by the applicable independent
organization.
(iv) A statement that identifies and, if applicable,
describes the applicant's relationship with any of the following persons.
(I) Identification of all of the applicant's principals,
executive officers, employees, and third-party providers that:
(-a-) exercised direct or indirect control over a REP
that experienced a mass transition of the REP's customers under §25.43
of this title (relating to Provider of Last Resort (POLR)) at any
time within the six months prior to the mass transition;
(-b-) exercised direct or indirect control over a market
participant at any time within the six months prior to a market participant
having had its ERCOT SFA terminated or a similar agreement for an
applicable independent organization other than ERCOT terminated;
(-c-) exercised direct or indirect control of a market
participant within the prior six months of a market participant having
exited an electricity or gas market with outstanding payment obligations
that remain outstanding; or
(-d-) have been barred, in any way, participation by
commission order.
(II) If a relationship exists as described in subclause
(I) of this clause, the applicant must include in the affidavit for
each such relationship:
(-a-) the name of the person;
(-b-) the name of the REP that experienced a mass transition
of its customers under §25.43 of this title or market participant
whose ERCOT SFA or similar agreement for an applicable independent
organization was terminated or exited a market with outstanding payment
obligations;
(-c-) details about the person's relationship with
the REP or market participant;
(-d-) factual statements about the events that necessitated
this response, including, if applicable, whether and, if so, how the
REP that experienced a mass transition of its customers under §25.43
of this title settled all outstanding payment obligations;
(-e-) the person's current relationship or position
with the applicant; and
(-f-) the extent of the person's apparent or actual
authority to act in such a way that may be perceived as having direct
or indirect control over the applicant.
(v) A statement affirming that the persons listed under
paragraph (g)(1) of this section do not control the applicant and
are not relied upon to meet the requirements of subsection (e)(1)(A)
and (B) of this section.
(F) To document compliance with subsection (e)(1)(C)
of this section, an applicant must provide:
(i) all relevant information related to each service
agreement executed with a QSE, including:
(I) the term of the service agreement and date the
service agreement began;
(II) the name of the QSE;
(III) the QSE's contact name and title;
(IV) the QSE's physical address;
(V) the QSE's e-mail address and web address; and
(VI) the QSE's business telephone number and toll-free
number;
(ii) a confirmation that applicant has the capability
and effective procedures to be the primary point of contact for retail
electric customers for distribution system service in accordance with
applicable commission rules, including procedures for relaying outage
reports to the TDU on a 24-hour basis;
(iii) a confirmation that applicant will provide outage
notifications in accordance with §25.53 of this title; and
(iv) a confirmation that applicant has or will soon
complete ERCOT's flight test obligation.
(f) Financial requirements. An Option 1 REP must, on
an ongoing basis, maintain compliance with paragraph (1) of this subsection
and, as applicable, paragraph (2) and (3) of this subsection. This
subsection does not apply to an Option 2 or Option 3 REP.
(1) Access to capital. A REP must maintain the requirements
of subparagraph (A) or (B) of this paragraph on an ongoing basis.
(A) A REP may maintain an executed version of the
commission approved standard form irrevocable guaranty agreement.
(i) The guarantor must be:
(I) One or more affiliates of the REP;
(II) A financial institution with an investment-grade
credit rating; or
(III) A provider of wholesale power supply for the
REP, or one of such power provider's affiliates, with whom the REP
has executed a power purchase agreement.
(ii) The guarantor must have:
(I) An investment-grade credit rating; or
(II) Tangible net worth greater than or equal to $100
million, a minimum current ratio (defined as current assets divided
by current liabilities) of 1.0, and a debt to total capitalization
ratio not greater than 0.60, where all calculations exclude unrealized
gains and losses resulting from valuing to market the power contracts
and financial instruments used as supply hedges to serve load.
(B) A REP may maintain an irrevocable stand-by letter
of credit with a face value as determined in clause (i) of this subparagraph,
based on the number of electronic service identifiers (ESI IDs) the
REP serves in the manner prescribed by clauses (ii) and (iii) of this
subparagraph. Additionally, for the first 24 months a REP is serving
load it must maintain not less than one million dollars in shareholders'
equity in accordance with clauses (iv) and (v) of this subparagraph.
(i) Attached Graphic
(ii) The number of ESI IDs includes all customer classes
to which a REP provides retail electric service.
Cont'd... |
