| any opinion regarding
the service of the competitive affiliate or any other service provider.
(4) Requests for general information about products or services
offered by competitive affiliates and their competitors. If a customer or
potential customer requests general information from a TDBU about products
or services provided by its competitive affiliate or the competitors of its
CS or CD, the TDBU shall not promote its competitive affiliate or its competitive
affiliate's products or services, nor shall the TDBU offer the customer or
potential customer any opinion regarding the service of the competitive affiliate
or any other service provider. The TDBU 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 TDBU may not refer the customer or potential customer to the competitive
affiliate except as provided for in paragraph (3) of this subsection.
(n) Remedies and enforcement.
(1) Code implementation filing.
(A) Not later than 120 days prior to the implementation of
customer choice by an MOU/COOP, a TDBU shall file with the commission its
plan for implementing the provisions of this section, addressing all applicable
requirements of this section in the context of its operations as they will
be conducted in the competitive retail market. The TDBU shall post notice
of its filing on its Internet site or a public electronic bulletin board for
30 consecutive days and shall provide copies of the filing to requesting parties.
Interested parties may file comments on the filing with the commission within
30 days following the filing and shall provide copies of such comments to
the TDBU. Commission staff shall review the code implementation filing and
provide to the TDBU its comments and recommendations as to any suggested changes
in the filing within 60 days following the date of the filing. The TDBU may
amend its initial filing based on the comments and recommendations and shall
file any such amendments not later than 75 days following the date of the
initial filing. The filing provided for in this paragraph is not subject to
the contested hearings process, except upon complaint by an interested party
or the commission staff.
(B) In lieu of the implementation filing provided for in subparagraph
(A) of this paragraph, an MOU/COOP may file with the commission a statement
that it does not at this time intend to provide electric energy at retail
to consumers in Texas outside its certificated retail service area as provided
for in subsection (b)(1)(B) of this section. Subsequently, if an MOU/COOP
intends to provide electric energy at retail to consumers in Texas outside
its certificated retail service area as provided for in subsection (b)(1)(B)
of this section, it shall file with the commission the implementation filing
provided for in subparagraph (A) of this paragraph not later than 120 days
prior to the time it provides retail electric energy in Texas outside its
certificated retail service area.
(2) Informal complaint procedure. A TDBU or a Bundled MOU/COOP
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 or other person employed by the TDBU or the Bundled MOU/COOP.
(A) All complaints shall contain:
(i) the name of the complainant;
(ii) a detailed factual report of the complaint, including
all relevant dates, entities or divisions involved, employees involved, and
the specific claim.
(B) A complaint must be filed with the TDBU or the Bundled
MOU/COOP within 90 days of the date the complaining party knew, or with diligent
investigation should have known, that the violation occurred, but in no event
may a complaint be filed more than three years after the violation occurred.
(C) 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 30 days after receipt of the complaint,
including a description of any course of action that will be taken.
(D) In the event the TDBU or the Bundled MOU/COOP and the complainant
are unable to resolve the complaint, the complainant may file a formal complaint
with the commission. In the event the complainant advises the TDBU or the
Bundled MOU/COOP that the complainant does not consider the complaint fully
resolved by the course of action proposed by the TDBU or the Bundled MOU/COOP
then the TDBU or the Bundled MOU/COOP 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 informal
complaint process shall be a prerequisite for filing a formal complaint with
the commission.
(E) A large TDBU or Bundled MOU/COOP shall report to the commission
regarding the nature and status of informal complaints handled in accordance
with this paragraph in its annual report of code-related activities filed
pursuant to subsection (d) of this section. The information reported to the
commission shall include the name of the complainant and a summary report
of the complaint, including all relevant dates, companies involved, employees
involved, the specific claim, and any actions taken to address the complaint.
Such information on all informal complaints that were initiated or remained
unresolved during the reporting period shall be included in the annual report
of code-related activities of the large TDBU or Bundled MOU/COOP.
(3) Filing a complaint. Following the informal process, a formal
complaint may be filed with the commission alleging a violation of this section.
No complaint shall be valid unless filed with the commission within 30 days
after the designated officer or employee of the TDBU or the Bundled MOU/COOP
mails its written report communicating the results of the preliminary investigation
to the complainant. Each complaint shall contain the name of the complainant
and a detailed factual report of the complaint, including all relevant dates,
entities or divisions involved, employees involved, and the specific claim.
Additionally, each complaint shall identify the specific provisions of this
section that are alleged to have been violated, contain a sworn affidavit
that the facts alleged are true and correct to the best of the affiant's knowledge
and belief, and if the complainant is a corporation, a statement from a corporate
officer that he or she is authorized to file the complaint.
(4) Notification of complaint and opportunity to respond. The
commission shall provide a copy of the complaint to the TDBU or the Bundled
MOU/COOP. The TDBU or the Bundled MOU/COOP shall respond to the complaint
in writing within 15 days. The TDBU or the Bundled MOU/COOP and the complainant
shall make a good faith effort to resolve the complaint on an informal basis
as promptly as practicable.
(5) Settlement conference. Upon request by the MOU/COOP subject
to the complaint, commission staff shall conduct a settlement conference.
At such settlement conference, each party, including the commission staff,
shall recommend what steps are necessary to cure any violation that it believes
has occurred. Discussions at the settlement conference, including the recommendations
to cure the violation, shall not be admissible at a hearing on the complaint.
(6) Opportunity to cure. The MOU/COOP shall have three months
to cure the violation in accordance with an agreement arising from the settlement
conference or following a hearing. An MOU/COOP may cure the violation in any
reasonable manner as set forth in the settlement agreement or hearing, including
taking action designed to prevent recurrence of the violation or amending
the rule or order.
(7) Enforcement by the commission. In the event the commission
finds there has been a violation which has not been reasonably cured, the
commission may enforce the provisions of this section.
(A) The commission may recommend actions to be taken by the
MOU/COOP within a prescribed time, and if such actions are not taken, the
commission may:
(i) seek an injunction to eliminate or remedy the violation
or series or set of violations; or
(ii) limit or prohibit retail service outside the certificated
retail service area of the TDBU or the Bundled MOU/COOP until the violation
or violations are adequately remedied. This remedy shall not be applied in
a manner that would interfere with or abrogate the rights or obligations of
parties to a lawful contract.
(B) In assessing enforcement remedies, the commission shall
consider the following factors:
(i) the prior history of violations by the TDBU or the Bundled
MOU/COOP, if any, found by the commission after hearing;
(ii) the efforts made by the TDBU or the Bundled MOU/COOP to
comply with the commission's rules;
Cont'd... |
