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developed and maintained by the commission;
(Q) instead of the restrictions in subsections (m)(3) and (m)(4)
of this section, if a customer or potential customer of a mid-size TDBU makes
an unsolicited request for distribution service, competitive service, or information
relating to such services, the mid-size TDBU shall inform the customer that
competitive energy-related activities are available not only from the mid-size
TDBU but also from other providers. The mid-size TDBU shall make available
to a customer upon request 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; and
(R) subsection (n) of this section, remedies and enforcement.
(5) Duration of code application. This section applies to a
TDBU and a Bundled MOU/COOP, regardless of whether it is classified as large,
mid-size or small, only so long as each of the conditions of paragraph (1)
of this subsection continue to be met.
(6) Report of energy system sales and declaration of code applicability.
A report of total metered electric energy (MWh) delivered through the TDBU's
system for sale at retail and wholesale, for the average of the three most
recent calendar years, shall be filed annually with the commission by each
MOU/COOP subject to the provisions of this section. The initial report shall
be filed in conjunction with subsection (n)(1) of this section. After the
initial report filing, the report of energy system sales shall be filed annually
by June 1, and shall encompass the period from January 1 through December
31 of the preceding year. The annual report of energy system sales shall be
filed under a control number designated by the commission for each calendar
year. Both the initial and annual reports of energy sales shall include a
statement from the MOU/COOP affirming that it is classified as either a small,
mid-size, or large TDBU.
(A) In the event that the MWhs delivered through the TDBU's
system increase so that a TDBU is reclassified to a larger size, the TDBU
shall notify the commission through the annual report of energy system sales.
The TDBU shall have one year from the date of the reclassification to implement
the applicable provisions of this section.
(B) Petition for exception to reclassification. Any TDBU may
petition the commission for exception to the size determination. Upon request,
if a small TDBU is reclassified as a mid-sized TDBU, the commission may consider
an adjustment for growth based upon total Texas retail sales.
(7) No circumvention of the code of conduct. An MOU/COOP shall
not circumvent the provisions of PURA §39.157(e) or this section by using
any affiliate to provide information, services, products, or subsidies that
would be prohibited by this section between a competitive affiliate and a
TDBU. A Bundled MOU/COOP shall not circumvent the provisions of PURA §39.157(e)
or this section by using any persons to provide information, services, products,
or subsidies that would be prohibited by this section between persons providing
transmission and distribution service on behalf of the Bundled MOU/COOP and
persons providing competitive energy-related activities on behalf of the Bundled
MOU/COOP.
(8) Good cause exception. An MOU/COOP that is or may become
subject to this section may petition the commission at any time for an exception
or waiver of any provision of this section on a showing of good cause. Good
cause may be demonstrated by showing that the cost or difficulty of achieving
compliance outweighs the benefit to be achieved or that there are other alternative
actions that are likely to produce reasonable results under the circumstances.
(9) Notice of conflict with other regulation and petition for
waiver. Nothing in this section shall affect or modify the obligation or duties
relating to any rules or standards of conduct that may apply to an MOU/COOP
or its affiliates, whether competitive or noncompetitive, under orders or
regulations of the Federal Energy Regulatory Commission (FERC), Securities
and Exchange Commission (SEC), or shall violate PURA, Chapters 40 and 41,
subchapter C. An MOU/COOP shall file with the commission a notice of any provision
in this section that conflicts with FERC or SEC orders or regulations. An
MOU/COOP that is subject to statutes or regulations in any state that conflict
with a provision of this section may petition the commission for a waiver
of the conflicting provision on a showing of good cause.
(c) Definitions. The following words and terms when used in
this section shall have the following meanings unless the context clearly
indicates otherwise:
(1) Affiliate--An entity, including a business unit or division,
that controls, is controlled by, or is under common control with, an MOU/COOP.
Control means the power and authority to direct the management or policies
of an entity through directly or indirectly owning or holding at least a 5.0%
voting or ownership interest. Affiliate includes an entity determined to be
an affiliate by the commission after notice and hearing based on criteria
parallel to those prescribed in PURA §11.006.
(2) Bundled MOU/COOP--An MOU/COOP that is conducting both transmission
and distribution activities and competitive energy-related activities on a
bundled basis without structural or functional separation of transmission
and distribution functions from competitive energy-related activities and
that makes a written declaration of its status as a Bundled MOU/COOP pursuant
to subsection (o)(3)(A) of this section.
(3) Competitive affiliate--An affiliate of an MOU/COOP that
provides services or sells products at retail in a competitive energy-related
market in this state, including telecommunications services to the extent
those services are energy-related. An affiliate of an MOU/COOP that is selling
energy only in the capacity of a provider of last resort within the scope
of PURA §40.053(c) and (d) or PURA §41.053 (c) and (d) is not a
competitive affiliate under this definition. The term competitive affiliate
shall include both competitive divisions and competitive subsidiaries.
(4) Competitive division (CD)--A competitive affiliate that
is organized as a division or other part of an MOU/COOP.
(5) Competitive energy-related activities--Services or products
that are sold at retail in a competitive energy-related market in this state,
including telecommunications services to the extent those services are energy-related.
(6) Competitive subsidiary (CS)--A competitive affiliate that
is organized as a corporation or other legally distinct entity.
(7) Confidential information--Any information not intended
for public disclosure and considered to be confidential or proprietary by
persons privy to such information. Confidential information includes, but
is not limited to, information relating to the interconnection of customers
to an MOU/COOP's transmission or distribution systems, proprietary customer
information, trade secrets, competitive information relating to internal manufacturing
processes, and information about an MOU/COOP's transmission or distribution
system, operations, or plans for expansion.
(8) Corporate support services--Services shared by a TDBU,
or an affiliate created to perform corporate support services, with the MOU/COOP's
affiliates of joint corporate oversight, governance, support systems, and
personnel. For a Bundled MOU/COOP, "corporate support services" includes governance,
support systems, and personnel.
(A) Examples of services that may be shared, to the extent
the services comply with this section, include human resources, procurement,
information technology, regulatory services, administrative services, real
estate services, legal services, accounting, environmental services, research
and development unrelated to marketing activity and/or business development
for the competitive affiliate regarding its services and products, internal
audit, community relations, corporate communications, financial services,
financial planning and management support, corporate services, corporate secretary,
lobbying, corporate planning, and community economic development if the economic
development activities are within the MOU/COOP's certificated retail service
area.
(B) Examples of services that may not be shared, except as
otherwise allowed under the terms of this section, include engineering, purchasing
of electric transmission facilities and service, transmission and distribution
system operations, and marketing.
(9) Fully allocated cost--The cost of a product, service, or
asset based on book values for the component elements established through
generally accepted accounting principles (GAAP); or alternatively, an internal
transfer price based upon the actual or expected (budgeted) operating and
maintenance expenses and a capital component, as appropriate, divided by the
expected or actual units for the service or product produced. Such transfer
prices may be set as needed but shall not be used beyond a three year period
without review. The operating and maintenance expenses shall be fully loaded
with applicable overheads. The capital Cont'd... |
