| (a) Applicability.
(1) This section contains the certification and reporting
requirements applicable to a retail electric provider (REP).
(A) A person must obtain a REP certificate under this
section before purchasing, taking title to, or reselling electricity
to provide retail electric service. A person may certify as an Option
1 REP, Option 2 REP, or Option 3 REP under this section. Certification
must be maintained on an ongoing basis by timely reporting and updating
the certification information in accordance with subsections (i) and
(h) of this section.
(B) A person that does not purchase, take title to,
or resell electricity to provide electric service to a retail customer
is not a REP and must not act as a REP without obtaining a certificate
under this section. A REP that outsources retail electric service
functions is responsible for those functions in accordance with all
applicable laws and commission rules for all activities conducted
on its behalf by any third-party provider.
(C) A person who owns or operates equipment used solely
to provide electricity charging service for consumption by an alternatively
fueled vehicle, as defined by Transportation Code, Section 502.004,
is not, for that reason, required to be certified as a REP.
(2) This section also applies, where specifically stated,
to an independent system operator or transmission and distribution
utility (TDU).
(3) A person certified as an Option 1 REP via an application
submitted prior to the effective date of this section must come into
compliance with the requirements of this section by March 5, 2024.
Prior to March 5, 2024, a person certified as an Option 1 REP via
an application submitted prior to the effective date of this section
must meet the requirements of this section as it was in effect on
April 1, 2023.
(A) A REP must complete and file a commission approved
compliance update form that demonstrates the REP is in compliance
with this section on or before March 5, 2024.
(B) A REP who does not demonstrate compliance with
this section on or before March 5, 2024, may be subject to a suspension
of acquiring new customers under subsection (l) of this section.
(b) Definitions. The following words and terms when
used in this section have the following meanings unless the context
indicates otherwise.
(1) Affiliate--As defined in §25.5 of this title
(relating to Definitions).
(2) Assumed name--Has the meaning assigned in Chapter
71 of the Texas Business and Commerce Code.
(3) Continuous and reliable electric service--Retail
electric service provided by a REP that is consistent with the customer's
terms and conditions of service and uninterrupted by the unlawful
or unjustified action or inaction of the REP.
(4) Control--The term control (including the terms
controlling, controlled by and under common control with) means the
direct or indirect possession of binding authority to direct or cause
the direction of the management, policies, operations, or decision-making
of a person, whether through ownership of voting securities, by contract,
formation documents, or otherwise. A principal is a controlling person.
A third-party provider may be a controlling person.
(5) Default--As defined in a TDU tariff for retail
delivery service, Electric Reliability Council of Texas (ERCOT) qualified
scheduling entity (QSE) agreement, or ERCOT load serving entity (LSE)
agreement, ERCOT standard form market participant agreement (SFA),
or any similar agreement with an applicable independent organization
other than ERCOT.
(6) Executive officer--An entity's president, any vice
president in charge of a principal business unit, division or function
(such as sales, administration or finance), any other officer who
performs a policy making function, or any other person who performs
similar policy making functions. Executive officers of subsidiaries
may be deemed executive officers of the entity if they perform such
policy making functions for the entity.
(7) Guarantor--A person that provides an irrevocable
guaranty agreement using the standard form approved by the commission
under this section.
(8) Investment-grade credit rating--A long-term unsecured
credit rating issued by the bond credit rating companies Moody's Investors'
Service (Moody's), Standard & Poor (S&P), or Fitch of at least
"Baa3" from Moody's or "BBB-" from S&P or Fitch.
(9) Option 1 REP--A REP that provides its service offerings
to any customer class based on geographic service area.
(10) Option 2 REP--A REP that limits its service offerings
to specifically identified customers, each of whom contracts for one
megawatt or more of capacity.
(11) Option 3 REP--A REP that sells electricity exclusively
to a retail customer, other than a small commercial or residential
customer, from a distributed generation facility owned by a power
generation company (PGC) that has registered in accordance with §25.109
of this title (relating to Registration of Power Generation Companies
and Self-Generators) located on the same geographic site as the customer.
(12) Person--An individual or any business entity,
including and without limitation, a limited liability company, a partnership
of two or more persons having a joint or common interest, a mutual
or cooperative association, or a corporation. Person does not include
an electric cooperative or a municipal corporation.
(13) Principal--Includes:
(A) A sole proprietor;
(B) A partner of a partnership;
(C) An executive of a company (e.g., a president, chief
executive officer, chief operating officer, chief financial officer,
general counsel, or equivalent position);
(D) A manager, managing member, or a member vested
with the management authority of a limited liability company or limited
liability partnership;
(E) A shareholder with more than 10% equity of the
REP, if a public company; or
(F) A person who exercises control and has apparent
or actual authority to exercise such control over either the REP or
a principal that is otherwise described by this subsection. A consultant,
third-party provider, or fiduciary of a company such as the board
of directors, is a principal if it has apparent or actual authority
to exercise control over the REP or principals of the REP, and exercises
such control.
(14) Shareholder--The legal or beneficial owner of
any of the equity of any business entity as the context and applicable
business entity requires, including, stockholders of corporations,
members of limited liability companies and equity partners of partnerships.
(15) Tangible net worth--Total shareholders' equity,
determined in accordance with generally accepted accounting principles,
less intangible assets other than goodwill.
(16) Third-party provider--An entity to which a REP
outsources or plans to outsource any retail or wholesale electric
functions. A contractor, consultant, agent, or any other person not
directly employed by the REP can be a third-party provider. A third-party
provider is a principal if it has apparent or actual authority to
exercise control over the REP or principals of the REP, and exercises
such control.
(c) Application processing.
(1) A person can apply to certify as a REP or amend
a REP certification by submitting a complete application on a form
approved by the commission. Commission staff will review each application
for sufficiency and submit a recommendation to the presiding officer
within 20 days after the application is filed. The presiding officer
will make a determination of sufficiency of the application within
ten days of receipt of commission staff's recommendation. If the presiding
officer finds that the application is deficient, the presiding officer
must notify the applicant. The applicant will have ten days from the
issuance of the notice to cure the deficiencies. If the deficiencies
are not cured within ten days, the presiding officer may notify the
applicant that the certification request is rejected without prejudice.
(2) While an application for certification or amendment
is pending, an applicant must notify the commission of any material
change to the information provided in the application within ten days
of any such change in accordance with subsection (h)(2) of this section.
(3) Except where good cause exists to extend the time
for review, the presiding officer will issue an order approving, rejecting,
or approving with modifications, an application within 90 days of
finding an application sufficient.
(4) For applications to certify as an Option 1 REP,
the presiding officer will deny an application if the configuration
of the proposed geographic area would unduly discriminate in the provision
of electric service to any customer because of race, creed, color,
national origin, ancestry, sex, marital status, lawful source of income,
disability, or familial status; because the customer is located in
an economically distressed geographic area or qualifies for low income
affordability or energy efficiency services; or because of any other
reason prohibited by law.
(5) An Option 2 REP application for certification that
meets all other requirements of this section except for the provision
of customer affidavits under subparagraph (d)(2)(I) may be conditionally
granted by the presiding officer. If such an application is conditionally
granted, the applicant must, within 30 days from the date the application
is granted, file in the docket the affidavit or affidavits required
by subsection (d)(2)(I). The application will be withdrawn and the
application denied with respect to each customer for whom the applicant
fails to timely file the required affidavit. Within 45 days after
the application is conditionally granted, commission staff must file
a status report indicating whether each of the required affidavits
were timely filed. The presiding officer will then issue a follow-up
order confirming the approval of the application as to each customer
for whom the required affidavit was filed and denying the application
as to each customer for whom the required affidavit was not filed.
(6) Document format. If a provision of this subsection
specifies a certain format for a document that must be filed with
or submitted to the commission, an applicant must file or submit that
document in the native format specified. A document filed in its native
format must permit basic data manipulation functions, such as copying
and pasting of data.
(d) Basic requirements.
(1) A REP must maintain its certification by complying
with the following subparagraphs on an ongoing basis.
(A) Only provide retail electric service under the
name or names set forth in an approved application for certification
or subsequent amendment application. A REP's certificate must contain
the REP's legal business name and all assumed names under which it
proposes to provide service.
(B) Not use more than five assumed names in the REP's
regular course of business.
(C) Maintain an active business registration with the
Texas Secretary of State.
(D) Maintain current and accurate contact information
including:
(i) the applicant's primary contact name and title,
street and mailing address, business telephone number and toll-free
number, business e-mail address, and applicant's web address;
(ii) for the pendency of the application or amendment,
the authorized representative's name, title, street and mailing address,
telephone number, e-mail address, and web address;
(iii) regulatory contact name, title, street and mailing
address, telephone number, e-mail address and web address;
(iv) customer complaint contact name, title, street
and mailing address, telephone number including a toll-free number,
e-mail address and web address;
(v) emergency contact's name, title, telephone number,
and e-mail address, and web address; and
(E) Maintain current and accurate office information
including:
(i) An office that has street address located within
Texas that is open during normal business hours for the purpose of
providing customer service and making available to commission staff
books and records sufficient to establish the REP's compliance with
Public Utility Regulatory Act (PURA) and commission rules; the office
must have the following contact information where the REP's staff
can be directly reached:
(I) a business telephone number and toll-free number,
(II) a business e-mail address and web address, and
(III) a business postal address that is not a post
office box.
(ii) The applicant's state of formation or incorporation,
and the address of the applicant's primary business office; and
(iii) A mailing address, if different from the applicant's
Texas office address or primary business office address; and
(iv) The name and address of the applicant's registered
agent for the purpose of receiving service of process.
(F) Comply with all applicable scheduling, operating,
planning, reliability, customer registration, and settlement policies,
protocols, guidelines, procedures, and other protocols established
by the applicable independent organization including any independent
organization requirements for 24-hour coordination with control centers
for scheduling changes, reserve implementation, curtailment orders,
and interruption plan implementation.
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