| available to all non-affiliates and third parties under the same terms
and conditions and at the same price or fully allocated cost as it is made
available to any person providing competitive energy-related activities on
behalf of the Bundled MOU/COOP.
(D) Requests for information. If a customer or potential customer
of a Bundled MOU/COOP makes an unsolicited request for distribution service,
competitive energy-related activities, products or services provided by an
Bundled MOU/COOP, or for information relating to such products or services,
the Bundled MOU/COOP shall inform the customer that competitive energy-related
activities are available not only from the Bundled MOU/COOP, but also from
other providers. If the Bundled MOU/COOP provides the customer or potential
customer with information about competitive energy-related activities offered
by the Bundled MOU/COOP, the Bundled MOU/COOP must record and allocate the
costs associated with the provision of such information in the same manner
as transactions involving the provision of competitive energy related activities,
in accordance with paragraph (1)(C) of this subsection. The Bundled MOU/COOP
shall not offer the customer or potential customer any opinion regarding the
service of any other competitive energy service provider. Upon request, the
Bundled MOU/COOP shall make available to a customer a copy of the most recent
list of competitive energy service providers as developed and maintained by
the commission and may make available telephone numbers and other commonly
available information. Such information shall also be made available by the
Bundled MOU/COOP to its transmission and distribution customers at the time
the Bundled MOU/COOP undertakes marketing to those customers of its competitive
energy-related activities.
(3) Reporting and auditing requirements. A Bundled MOU/COOP
shall maintain and file the following information so the commission can ensure
that the Bundled MOU/COOP is not engaging in any anticompetitive activities
as a result of its competitive energy-related activities being bundled with
the transmission and distribution operation.
(A) Code implementation filing.
(i) Not later than 120 days prior to the implementation of
customer choice by a Bundled MOU/COOP, the Bundled MOU/COOP shall file with
the commission a written declaration that it will operate as a Bundled MOU/COOP
and its plan for implementing the provisions of this section. The plan shall
address all applicable requirements of this section in the context of operations
as they will be conducted in the competitive retail market. The Bundled MOU/COOP
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 plan
to requesting parties. The code implementation plan proposed by the Bundled
MOU/COOP shall be subject to a contested hearing process. Interested parties
may file comments on the filing with the commission. The commission shall
issue an order either approving the code implementation plan, approving the
plan with modifications, or rejecting the plan within 120 days.
(ii) In lieu of the implementation filing provided for in clause
(i) of this subparagraph, a Bundled MOU/COOP may file with the commission
a statement that it does not at this time intend to provide electric energy
at retail to customers in Texas outside its certificated retail service area
as provided for in subsection (b)(1)(B) of this section. Subsequently, if
a Bundled 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 the implementation filing provided
for in clause (i) of this subparagraph with the commission not later than
120 days prior to the time it intends to provide retail electric energy in
Texas outside its certificated retail service area.
(B) Annual report of code-related activities. A report of activities
related to this subsection shall be filed annually with the commission under
a control number designated by the commission. The report shall be filed by
June 1 and shall encompass the period from January 1 through December 31 of
the preceding year. The report shall contain detailed information on how the
Bundled MOU/COOP met each of the provisions of paragraphs (1) and (2) of this
subsection and any deviations from the actions set forth in the initial code
compliance filing. Commission staff shall review the annual report of code-related
activities. 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.
(C) Copies of contracts or agreements. A Bundled MOU/COOP shall
reduce to writing and file with the commission copies of any contracts or
agreements it has with any persons providing competitive energy-related activities
on behalf of the Bundled MOU/COOP. The Bundled MOU/COOP does not have to produce
any contracts it has with third parties if such contracts were negotiated
on an arm's length basis. The requirements of this section are not satisfied
by the filing of an earnings report. All contracts or agreements shall be
filed by June 1 of each year as attachments to the annual report of code-related
activities required in subparagraph (B) of this paragraph. In subsequent years,
if no significant changes have been made to the contract or agreement, an
amendment sheet may be filed in lieu of refiling the entire contract or agreement.
(D) Compliance audits. No later than one year after the Bundled
MOU/COOP becomes subject to this section as set forth in subsection (b)(1)
and (2) of this section, and, at a minimum, every third year thereafter, the
Bundled MOU/COOP shall have an audit prepared by independent auditors that
verifies that the Bundled MOU/COOP is in compliance with this section. The
Bundled MOU/COOP shall file the results of each audit with the commission
within one month of the audit's completion.
(4) Remedies and enforcement. Bundled MOU/COOPs shall be subject
to the provisions of subsection (n)(2)-(10) of this section on the same terms
and conditions as the TDBU.
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