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(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;
(iii) the nature and extent of economic benefit gained by the
TDBU's competitive affiliate or the Bundled MOU/COOP;
(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;
and
(vi) such other factors deemed appropriate and material to
the particular circumstances of the violation or series or set of violations.
(C) The commission may conduct a compliance audit of affiliate
activities to ensure compliance with the code of conduct.
(8) No immunity from antitrust enforcement. Nothing in these
affiliate rules shall confer immunity from state or federal antitrust laws.
Enforcement actions by the commission for violations of this section 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 may also be sought in federal or state court to cure anti-competitive
activities.
(9) 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.
(10) Preemption. This section 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 section.
(o) Provisions for Bundled MOU/COOPs.
(1) Transactional safeguards relating to provision of products
and services. To protect against anticompetitive activities, the provisions
of this subsection apply to all Bundled MOU/COOPs meeting the qualifications
set forth in subsection (b)(1)(A) and (B) of this section, regardless of whether
the MOU/COOP has any affiliates or competitive affiliates.
(A) Tying arrangements prohibited. A Bundled MOU/COOP shall
not condition the provision of any transmission or distribution product, service,
pricing benefit, or alternative terms or conditions upon the purchase of any
other good or service from the Bundled MOU/COOP.
(B) 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 Bundled MOU/COOP to any third party or any
persons providing competitive energy-related activities on behalf of the Bundled
MOU/COOP, 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 any persons providing competitive energy-related activities
on behalf of the Bundled MOU/COOP, 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.
(C) Cross-subsidization prohibited. A Bundled MOU/COOP shall
not create significant opportunities for cross subsidization of competitive
energy-related activities with revenues from distribution and transmission
rates.
(D) Records of transactions involving competitive energy-related
activities. A Bundled MOU/COOP shall maintain segregated accounts and records
of all transactions regarding the provision of competitive energy-related
activities consistent with the FERC chart of accounts or a comparable tracking
method. In accordance with generally accepted accounting principles, a Bundled
MOU/COOP shall separately record all transactions regarding the provision
of competitive energy-related activities and all transactions relating to
the transmission and distribution function. Such records shall include all
expenses, whether direct or indirect, and at the fully allocated cost to provide
such competitive energy service. Such expenses shall not be included in the
Bundled MOU/COOP's transmission and distribution rates.
(E) Transfer or use of assets or products to provide competitive
energy-related activities. A Bundled MOU/COOP shall implement procedures and
safeguards to ensure that the transfer or use of assets or products by a person
providing competitive energy-related activities on behalf of the Bundled MOU/COOP
shall be accomplished at pricing levels that are fair and reasonable to the
customers of the transmission and distribution system of the Bundled MOU/COOP
and at pricing levels that do not include any preferential discounts, rebates,
fee waivers or alternative tariff terms and conditions.
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