| (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.
(B) Exception for release to governmental entity. Without customer
authorization, a TDBU may release proprietary customer information to a federal,
state, or local governmental entity or in connection with a court or administrative
proceeding involving the customer or the TDBU, provided however, that the
TDBU shall take all reasonable actions to protect the confidentiality of such
information, including, but not limited to, providing such information under
a confidentiality agreement or protective order, and shall also promptly notify
the affected customer in writing that such information has been requested.
(C) Exception to facilitate transition to customer choice.
In order to facilitate the transition to customer choice, an MOU/COOP may
release proprietary customer information to its competitive affiliate without
authorization of those customers, where either entity will be exercising the
function of retail electric provider or provider of last resort, provided
however, that such information may be released only during the six-month period
prior to implementation of customer choice, during the six-month period prior
to implementation or expansion of a pilot project, or such additional periods
as may be prescribed by the commission.
(D) Exception for release to providers of last resort. On or
after January 1, 2002, a TDBU may provide proprietary customer information
to a provider of last resort without customer authorization for the purpose
of serving customers who have been switched to the provider of last resort.
(E) Exception for release to customer's selected competitive
retailer. Subject to demonstration by the competitive retailer that the customer
has selected that competitive retailer, a TDBU shall release proprietary customer
information for a particular customer to the competitive retailer chosen by
that customer in connection with provision of metering data or otherwise in
compliance with the Access Tariff applicable to the TDBU under PURA §39.203.
(2) Nondiscriminatory availability of aggregate customer information.
A TDBU may aggregate non-proprietary customer information, including, but
not limited to, information about a TDBU's energy-related goods or services.
However, except in circumstances solely involving the provision of corporate
support services in accordance with subsection (j)(3) of this section, a TDBU
shall aggregate non-proprietary customer information for a competitive affiliate
only if the TDBU makes such aggregation service available to all non-affiliates
under the same terms and conditions and at the same price or fully allocated
cost as it is made available to any of its competitive affiliates. In addition,
no later than 24 hours prior to a TDBU's provision to its competitive affiliate
of aggregate customer information, the TDBU shall post a conspicuous notice
on its Internet site or other public electronic bulletin board for at least
30 consecutive calendar days, providing the following information: the name
of the competitive affiliate to which the information will be provided, the
rate charged or cost allocated for the information, a meaningful description
of the information provided, and the procedures by which non-affiliates may
obtain the same information under the terms and conditions. The TDBU shall
maintain records of such disclosure information for a minimum of three years
and shall make such 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.
(3) No preferential access to transmission and distribution
information. A TDBU shall not allow preferential access by its competitive
affiliates to information about its transmission and distribution systems.
(4) Other limitations on information disclosure. Nothing in
this rule is intended to alter the specific limitations on disclosure of confidential
information in the Texas Utilities Code, the Texas Government Code, Chapter
552, or the commission's substantive and procedural rules.
(5) Other information. Except as otherwise allowed in this
subsection, a TDBU shall not share information with competitive affiliates,
except for information required to perform allowed corporate support services
unless the TDBU can prove to the commission that the sharing will not compromise
the public interest prior to any such sharing. Information that is publicly
available, or that is unrelated in any way to utility activities, may be shared.
(m) Safeguards relating to joint marketing and advertising.
(1) Name and logo. A TDBU may not, prior to September 1, 2005,
allow the use of its corporate trademark, name, brand, or logo by a CS on
employee business cards or in any written or auditory advertisements of specific
services to existing or potential residential or small commercial customers
located within the TDBU's certificated service area, whether through radio
or television, Internet-based, or other electronic format accessible to the
public unless the CS includes a disclaimer with its use of the TDBU's corporate
trademark, name, Cont'd... |
