| (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.
(F) Provision of corporate support services. The provision
of corporate support services by a Bundled MOU/COOP to provide competitive
energy-related activities shall be carried out in such a way as to comply
with the provisions of paragraph (2)(A)-(D) of this subsection, thereby preventing
the opportunity for preferential treatment or unfair competitive advantage,
customer confusion, or significant opportunities for cross-subsidization.
(G) No preferential access to transmission and distribution
information. A Bundled MOU/COOP shall not allow preferential access by any
person providing competitive energy-related activities on behalf of the Bundled
MOU/COOP to information about its transmission and distribution systems. Such
information shall be provided as required in paragraph (2)(D) of this subsection.
(H) Sharing of personnel, facilities, and resources. A Bundled
MOU/COOP shall implement procedures and safeguards governing the sharing of
personnel, facilities, officers and directors, equipment, and corporate support
services with persons providing competitive energy-related activities on behalf
of the Bundled MOU/COOP to ensure that confidential information is protected,
that there are no opportunities for preferential treatment or unfair competitive
advantage, that undue customer confusion will be prevented, and that no significant
opportunities for cross-subsidization are created. A Bundled MOU/COOP shall
document the assignment of shared employees engaged in both transmission or
distribution system operations and the provision of competitive energy-related
activities. For shared employees, the tracking documentation shall include
the employees' name, job title, scope of activities, and allocation of time
to the transmission and distributions functions and competitive energy-related
activities. The tracking documentation for shared employees shall be filed
annually with the annual report of code-related activities required by paragraph
(3)(B) of this subsection.
(I) Marketing and advertising. A Bundled MOU/COOP shall implement
procedures and safeguards relating to the marketing and advertising of the
Bundled MOU/COOP's competitive energy-related activities to prevent favoritism
being shown to the competitive energy-related activities provided by the Bundled
MOU/COOP, to prevent customer confusion, to prevent the inappropriate sharing
of customer information, and to prevent significant opportunities for cross-subsidization.
(2) Informational safeguards. The following provisions apply
to Bundled MOU/COOPs.
(A) Sharing of customer information. A Bundled MOU/COOP shall
implement adequate safeguards to preclude any persons providing competitive
energy-related activities on behalf of the Bundled MOU/COOP, or any other
entities, from gaining access to information in a manner that would allow
or provide a means to transfer confidential information, create an opportunity
for preferential treatment or unfair competitive advantage, lead to customer
confusion, or create significant opportunities for cross-subsidization. Non-proprietary
information possessed by the Bundled MOU/COOP that is made available to any
persons providing competitive energy-related activities provided by the Bundled
MOU/COOP shall likewise be made available to third parties providing competitive
energy-related activities at the Bundled MOU/COOP's cost to produce such information
for the third party.
(B) Proprietary customer information. Upon request by the customer,
a Bundled MOU/COOP shall provide a customer with the customer's proprietary
customer information. Unless a Bundled MOU/COOP obtains prior affirmative
written consent or other verifiable authorization from the customer as determined
by the commission, or unless otherwise permitted under this subparagraph,
it shall not release any proprietary customer information to a person providing
competitive energy-related activities on behalf of the Bundled MOU/COOP 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. The Bundled
MOU/COOP shall be permitted to release proprietary customer information under
the same terms and conditions as a TDBU as set forth in subsections (l)(1)(A)-(E)
of this section.
(C) Nondiscriminatory availability of aggregate customer information.
A Bundled MOU/COOP may aggregate non-proprietary customer information, including,
but not limited to, information about a Bundled MOU/COOP's energy-related
goods or services. However, except in circumstances solely involving the provision
of corporate support services, a Bundled MOU/COOP shall aggregate non-proprietary
customer information for a third party or any person providing competitive
energy-related activities only if the Bundled MOU/COOP makes such aggregation
service Cont'd... |
